Bava Kamma 33a (לג.) — the Talmud in English

And the Gemara explains: The Gemara therefore specified that the case concerns his apprentice, since a person

else

who entered with permission

does not fear his master,

and therefore, if the owner of the premises asks him to leave, he will not hasten to obey him; and if he is killed, the blacksmith is liable to exile, since he should have taken into consideration that the other person had not yet left.

But

this one,

the blacksmith's apprentice,

does fear his master,

and if his master instructs him to leave, he leaves immediately. Therefore, if he is killed, it is explained in the beraita that the blacksmith is exempt, since the blacksmith had presumed that he had already left.

The Gemara now presents another explanation of the statement of Rabbi Yosei bar Ḥanina:

Rav Zevid taught it in the name of Rava

with regard to the statement of Rabbi Yosei bar Ḥanina

as follows:

It is stated in the Torah: “And when a man goes into the forest with his fellow to cut wood, and his hand swings the ax to cut the tree, and the iron slips from the wood and finds his fellow, and he dies, he shall flee to one of these cities and live.”

The Sages expounded from the phrase

“and finds,”

that only if the iron finds the victim and strikes him is the killer liable to exile.

This excludes one who brings himself into its path:

if the murdered person brought himself to the place toward which the iron had been thrown, the killer is exempt.

From here

Rabbi Eliezer ben Yaakov said: If a stone left his hand

unintentionally,

and the other person stuck

his head

out of the window

and received it

and died

, the thrower is exempt

from exile

.

And concerning this,

Rabbi Yosei bar Ḥanina said:

Although the verse teaches that he is

exempt from exile,

nevertheless, with regard to damages he is considered negligent,

and

therefore, if he threw a stone and the other person stuck out his head and was injured, the thrower

is liable for the four payments.

And the Gemara explains:

The one who teaches it

who teaches Rabbi Yosei's statement

as follows,

with regard to one who brings himself into the stone's path, that he is liable for the four payments,

all the more so

does he teach Rabbi Yosei's statement

with regard to the first case,

where a person entered a carpenter's shop and the carpenter struck him, that the carpenter is liable for the four payments.

And

if

the one who teaches it

Rabbi Yosei's statement

with regard to the first case,

the beraita concerning one who entered a carpenter's shop, holds that the carpenter is liable for the entrant's damages specifically when the carpenter had an opportunity to take precautions,

but as for this case,

one who brings himself into the stone's path,

the thrower is exempt

entirely,

even from the four payments

.

The Sages taught: Laborers who came to demand their wages from the employer, and the employer's ox gored them or the employer's dog bit them, and they died,

the employer

is exempt.

Others say: Laborers are permitted

to enter the courtyard in order

to demand their wages from the employer,

and the employer must guard his ox so that it does not injure them; and if it injures them, the employer is liable.

And the Gemara asks:

What are the circumstances?

If

the case concerns an employer

who is commonly found in the city,

who is present in the city and can be approached to demand payment even outside his home, then they do not have permission to enter his home, since they must wait for him outside until he leaves. If so,

what is the reason for Others'

statement that the laborers are permitted to enter to demand their wages?

And

if

the case concerns one

who is commonly found

only

at home

and does not leave it, then they have no way to receive their wages unless they come to his home, and they are entering with permission. If so,

what is the reason for the first tanna's

statement that if the employer's ox injures them, he is exempt? They are entering with permission.

And the Gemara explains:

It is necessary

to state the ruling with regard

to a person who is sometimes found and sometimes not found,

who sometimes leaves his house for the marketplace and sometimes remains inside his house.

And

the discussion concerns a case in which the laborers came to his home and

called at the door,

calling to him from the entrance of the courtyard,,

and he said to them: Yes.

One sage holds

that Others explain that the employer intended by saying

“Yes, come in!”

Enter;

it means

that the laborer entered with permission, and if the employer's ox injured him, the employer is liable.

And one sage holds

the Rabbis, that the employer intended to say,

“No; stand in your place,”

remain where you are, and I will come to the entrance;

it means

that if the laborer entered the courtyard, he entered without permission, and if the employer's ox gored him, the employer is exempt.

It was taught in accordance with the one who says that “No” means “Stand in your place,”

in accordance with the Rabbis.

For it was taught: A laborer who entered to demand his wages from the employer, and the employer's ox gored him or his dog bit him,

the employer

is exempt, even though he entered with permission.

And apparently one must examine this:

Why

is the employer

exempt,

when the laborer entered with permission?

Rather, is it not

necessary to explain that the case concerns a laborer who stood at the entrance of the courtyard

and called at the door,

calling to the employer from the entrance to come to him,

and he said to him

the employer

“No,” and

since it teaches that the employer is exempt,

infer from it

that his intention in saying

“No” was, “Stand in your place,”

and therefore, if the laborer was injured, the employer is exempt.

Mishna:

From the beginning of the chapter, “One Who Places,” the Mishnayot and the Gemara dealt with a person who causes damage and with damages caused by a pit. From this point onward, the laws of a damaging ox will be explained.

1.

Two oxen that were tamim (that had not been declared forewarned by a court), belonging to two people,

[that had not been declared dangerous by a court], belonging to two different people,

that injured one another,

if one ox’s injury was greater than the other’s, the difference between the lesser damage and the greater damage is assessed, and

they pay for the excess

from the difference an amount equal to

half

the damage,

as is the law of a tam that pays half-damages. For example: If one ox was injured to the extent of one hundred zuz [a maneh] and the other to the extent of two hundred, the ox injured to the extent of two hundred does not receive one hundred zuz as payment for half its damage, since it too caused damage amounting to one hundred zuz. Rather, the portion by which it was injured beyond the damage it caused is assessed. It is therefore considered as though it was injured to the extent of one hundred zuz, and it receives half of that amount—fifty. 2. And if

both

were

forewarned,

and they injured one another,

they pay full damages for the excess;

the one whose damage was greater receives the entire difference, the amount by which it was injured more than the other, as is the law of a forewarned ox that causes damage and pays full damages.

For example, if one ox was injured to the extent of one hundred and the second ox to the extent of two hundred, the owner of the ox injured to the extent of two hundred assesses how much his ox injured the other—one hundred—and receives the excess, the additional amount by which it was injured beyond that—another one hundred.

3. If

one

of the oxen was

a tam and

the

other was forewarned,

and they injured one another,

if the injury inflicted by the

forewarned ox against the tam

was greater than the injury inflicted by the tam against the forewarned ox,

the owner of the forewarned ox pays

the owner of the tam

full damages for the excess,

the entire difference by which his ox caused more damage than it suffered, as is the law of a forewarned ox that causes damage.

And if the injury caused by the

tam against the forewarned ox

was greater than the injury caused by the forewarned ox against the tam,

the owner of the tam pays

the owner of the forewarned ox

half-damages for the excess,

half the difference by which his ox caused more damage than it suffered, as is the law of a tam that causes damage.

4.

Likewise, when two people injure one another,

and one person’s injury is greater than the other’s,

they pay full damages for the excess.

5.

A person

who injures

a

forewarned

ox, and

likewise a forewarned

ox

that injures

a person,

if one of them injured the other more than it was injured,

it pays full damages for the excess.

The Yam Shel Shlomo explained that there is a practical difference between saving one’s relative and saving another person. The case is one in which the victim was being struck lawfully. If the rescuer came to save his relative and struck the assailant, the rescuer is exempt even though the assailant was striking lawfully and there was no permission to stop him and strike him, because the rescuer is considered to have acted under duress: he could not bear seeing his relative being struck. But if he came to save another person, and the assailant was striking that person lawfully, the rescuer struck the assailant unlawfully and is liable to pay him for the blow. See there for the continuation of his words. And the Perisha [ section 421, subsection 20; this was quoted similarly by the Sma, subsection 28] explained that the distinction is as follows: when a person sees one person striking another, the observer is permitted to strike the assailant only in order to stop him from committing a transgression. Therefore, if it becomes known that the observer who came to stop the assailant was not striking him in order to stop the transgression but merely out of hatred—for example, this person had seen people striking each other several times but had never stopped them—he is forbidden to strike the assailant. This is not so when the victim is a member of his family: he may save the victim from the assailant even though he normally does not stop people who strike one another from committing the transgression. And the Taz questioned this explanation: does the law of stopping someone from committing a transgression depend on the rescuer’s intention? Since it is permitted to stop the assailant, it should make no difference what the observer’s intention was when stopping him—whether he acted for the sake of a mitzva or out of hatred. In either case, he is permitted to strike the assailant. Therefore, he explained that the distinction in the Rosh’s words between someone who wishes to stop an assailant from striking his relative and someone who wishes to stop an assailant from striking an ordinary person is that when saving another person, one may not strike until it is completely clear that the victim cannot be saved except by striking the assailant. But when saving a relative, one is not so exacting about whether the victim could have been saved in another way, because one’s relative is like oneself. See there, where he inferred this from the Rosh’s wording. Rabbi Shmuel Rozovsky [ novellae on Bava Batra 10] questioned the words of the later authorities. Where do we find that a relative has the legal status of one’s own body, such that there should be a distinction in the law and one should be permitted to strike his assailant more readily than any other person? Therefore, Rabbi Shmuel explained the matter in the opposite way. There would actually have been reason to be more stringent and forbid striking the person who was striking one’s relative, because the fundamental permission to strike the assailant is in order to stop him from committing a transgression. If so, one might have said that a person saving his relative does not intend to stop the assailant from committing a transgression; his entire intention is merely to save his relative. The Rosh therefore teaches that even when one sees his relative being struck, he is permitted to save him and strike the assailant. [According to this, however, the Rosh should have mentioned first the law of stopping a transgression when one sees another person being struck, and afterward added that the same law applies when one sees his relative being struck. See there.] It has already been explained that the Taz’s words imply that, logically, one may stop the assailant even without an intention for the sake of a mitzva, unlike Rabbi Shmuel Rozovsky. The Tur and the Shulchan Arukh [ section 421] cited this law: if the two people did not begin simultaneously, the person who was struck may strike the assailant in return. Their wording appears to imply that the second person is exempt only when the first continues striking him and he must strike the first in order to save himself. But if the first person has stopped striking, the second has no permission to retaliate. Apparently, this follows from the reasons given by the Rosh: that he may save himself and stop the assailant from committing a transgression. These reasons do not apply when the first person has stopped striking. According to this, there is a distinction between two oxen and two people. In the case of oxen, if the second ox returned and struck the first after the first had stopped striking, the second is exempt under the principle that “if one changed the animal’s behavior,” unless they separated and began a new quarrel, in which case the second is also liable. In the case of people, however, the second may strike only while the first is striking him. This is explained similarly by the Bach [ there, subsection 19] and by the Taz. But the Perisha [ there, subsection 18; this was quoted similarly by the Sma [24] and by the glosses of the Vilna Gaon [17]] maintained that there is a scribal error in the Tur and the Shulchan Arukh, and that in fact, if the person who was struck returned and struck the first person immediately after being struck, he is exempt, just as in the case of oxen, because he is acting in the heat of anger. See the Even HaEzel [ Monetary Damages 9:14], who questioned their view: what exemption can a person have for striking while in the heat of anger? Is striking permitted merely because he is angry? We do not find the principle that a person may enforce justice on his own behalf above, 28a, except when he is entitled to something according to the law, and not merely when he is in the heat of anger. See the Yam Shel Shlomo, who wrote that the second person is considered to be lacking judgment and has the exemption of “if one changed the animal’s behavior,” as in the case of an animal, even if the first person has stopped striking him. Now, the Shulchan Arukh [ section 421:13] cited the Rosh’s ruling concerning two people: both are liable only when they began simultaneously or when the second retaliated after some time. But [in section 402] it cited only the case of two oxen that injured each other, stating that they pay half the damage from the remainder, and did not mention the Rosh’s statement that there is a distinction between those who began simultaneously and those who began one after the other. And the Rema cited the Rosh’s view as one of the opinions, and concluded: “The author, who ruled here [concerning two oxen] like the one who disagrees [with the Rosh] and holds that no distinction should be made [between those who began simultaneously and those who began one after the other], while later [concerning two people] ruled as I have written [according to the Rosh], did not decide correctly.” The Sma [ section 402, subsection 11] and the Vilna Gaon [ subsection 4] wrote that the Rema’s words imply that there is a dispute between the Rosh and Rabbi Isaac, whom the Tur cited [as brought in the note]. But it is possible that Rabbi Isaac disagrees only with the Rosh’s method of calculation, not with this law. The Shulchan Arukh omitted this law in section 402 because it relied on its explanation of this law concerning oxen in section 421. See the Yam Shel Shlomo. And the Be’er HaGolah wrote that the author did not mention the Rosh’s words concerning two oxen because, in his view, there is a distinction between oxen that began simultaneously and those that began one after the other only in the case of people. In that case, the second person is exempt because he is permitted to save himself. But in the case of two oxen that began one after the other, the second ox has no permission to save itself; therefore, both owners are liable, just as when they began simultaneously. This requires explanation. It is understandable that the second ox is not exempt under the principle that “if one changed the animal’s behavior,” as explained by Maimonides—see the first note above—but why is an ox forbidden to save itself? And the Even HaEzel [ 9:14] wrote that the author understood the Rosh to permit the second ox to return and injure the first, and disagreed with him on this point. We do not find that one may strike under the principle that “if one changed the animal’s behavior” when the first ox is no longer striking. Therefore, the Shulchan Arukh omitted this law.

6.

A person

who injures

a

tam ox, and

a tam

ox

that

injures

a person.

If the

person

injured

the tam

more than he himself was injured,

he pays

the owner of the tam

for the excess,

the difference by which the tam was injured more than the person himself was injured,

full compensation

as is the law concerning a person who causes damage.

And if the

tam

injured

a person

more than the person injured it, the owner of the tam

pays

the injured person

for the excess,

the difference by which the person was injured more than he injured it,

half-damage,

as is the law concerning a tam ox.

Rabbi Akiva says: Even a tam that injures a person pays full compensation for the excess.

Gemara:

The Gemara cites a beraita explaining the dispute between the Sages and Rabbi Akiva in the Mishna.

The Sages taught:

It is stated in the Torah: “And if an ox gores a man or a woman, and he dies, the ox shall surely be stoned, and its flesh shall not be eaten; but the owner of the ox shall be clear. But if the ox was a goring ox from before that time, and its owner did not guard it, he shall surely pay ox for ox, and the dead animal shall be his. Or if it gore a son or gore a daughter, according to this law shall it be done to him.” This is the passage concerning damage caused by an ox to a person.

“And if an ox gore another ox, his fellow’s ox, and it dies, then they shall sell the living ox and divide its money, and they shall also divide the dead animal. Or if it was known that the ox was a goring ox from before that time, and its owner did not guard it, he shall surely pay ox for ox, and the dead animal shall be his.” This is the passage concerning damage caused by an ox to an ox.

Rabbi Akiva and the Sages disputed the meaning of what is stated concerning an ox that gored a son or daughter,

“According to this law shall it be done to him,”

which law the Torah intended.

The Sages explain: The expression “this law” refers to the passage that follows, which deals with the law of an ox that gored an ox. The Torah’s intent is to compare an ox that gored a person to an ox that gored an ox, and this is what it is saying:

According to the law of an ox with an ox

stated below,

so is the law of an ox with a person.

The Torat Chaim wrote that the derivation is from the wording “according to the law,” rather than “the law.” It appears from Tosafot that even without this verse, the law would be that an unblemished ox that injured a person pays half-damages. For what reason would one think that it pays more? We have not found an unblemished animal in the Torah that pays more than half-damages. The verse was needed to derive this limitation from “according to this law,” excluding Rabbi Akiva’s view.

The meaning of the comparison is:

With regard to an ox and an ox,

the law is that if the goring ox is

a tam,

its owner

pays half-damage, and

if it is

a muad,

its owner pays

full compensation. So too, with regard to an ox and a person, a tam pays half-damage, and a muad pays full compensation.

This is the source of the Sages’ ruling in the Mishna that a tam that injures a person pays half-damage.

Rabbi Akiva says:

From the fact that it is stated,

“According to this

law shall it be done to him,”

,

rather than “According to the law shall it be done to him,” it is understood from the superfluous word “this” that an ox that injures a person, whether it is a tam or a muad, has the law of

the lower case and not the upper case,

like the lower case in the preceding verse, which deals with a muad ox that killed a person.

Accordingly, Rabbi Akiva holds that with regard to an ox that gores a person, there is no distinction between a tam and a muad; its law is that of a muad.

This is the source of Rabbi Akiva’s statement in the Mishna: “Even a tam that injures a person pays full compensation,” because it is treated as a muad.

And Rabbi Akiva added: Since a tam ox that gored a person has the law of a muad,

one might

think that its law is entirely that of a muad ox, whose owner

pays

the damage

from his general assets [

and not from the body of the ox].

The Torah therefore states, “

According to this law

shall it be done to him,”

and we derive from the meaning of the word “to him” that

he pays from its body and does not pay from his general assets.

And

the Gemara asks: According to

the Rabbis,

why do we need “this” law

at all?

It would have been sufficient to say, “According to the law shall it be done to him,” since they do not expound the superfluous word “this” as Rabbi Akiva does. The Gemara answers: The superfluous word “this” is stated in order

to exempt him from the four matters,

as the meaning of the verse is: This law alone applies to him, requiring him to pay according to the law of an ox that injures an ox, which is not liable for the four matters; he does not pay according to the law of a person who injures another, who is liable for five matters.

The Gemara asks again:

From where does Rabbi Akiva derive the exemption from the four matters?

And it answers: He derives it from

what is stated [Leviticus 24:19]:

“When a man gives a blemish to his fellow,”

“As he has done, so shall it be done to him.” And we expound:

“A man to his fellow,” but not an ox to his fellow;

from here it follows that an ox that gores a person is exempt from the four matters.

And the Rabbis

held that the source for exempting an ox that gored a person from the four matters is derived from the superfluous word “this.” For

if

we do not expound it as Rabbi Akiva does,

from that

derivation, “a man to his fellow, but not an ox to his fellow,”

one might think

that the ox is exempt only from

pain alone,

since payment for pain is not compensation for the injured party’s financial loss. It is possible that the Torah is teaching that a person is liable even for pain, whereas an ox is not liable for something that is not a financial loss.

But as for medical expenses and loss of income, one might say

that the owner of an ox that gores a person is required

to give it

to the injured party,

This teaches us

that the Sages therefore expounded the superfluous expression “this law” to mean that an ox that gores a person is exempt from the four matters.

Mishna:

A tam ox that gored and caused damage pays half-damage from its body, as it is stated: [Exodus 21:35] “And they shall sell the living ox and divide its money, and they shall also divide the dead animal.” Our Mishna comes to explain how the injured party collects his half-damage.

An ox

that is a tam,

worth one hundred dinars,

one hundred zuz

, that gored an ox worth two hundred

zuz, and died,

and the carcass

of the gored ox

is worth nothing,

so that half the damage is one hundred zuz, equal to the value of the damaging ox; therefore the injured party

takes the ox

that gored as payment for the damages he is owed.

Gemara:

The Mishna states, “He takes the ox,” implying that the one who caused the damage has no right to pay money for the damage caused by his ox. Rather, the ox itself is designated as security for payment of the damage, and therefore the injured party takes the ox.

The Gemara discusses this:

Who is the author of the Mishna,

according to which of the tannaim cited below was the Mishna formulated?

It must be that it is the opinion of

Rabbi Akiva!

As it is taught:

An ox worth one hundred zuz that gored an ox worth two hundred—how does the owner of the goring ox pay half-damage?

The ox is appraised by the court.

The court appraises the value of the ox, and its owner pays its value to the owner of the injured ox; the injured party has no right to the body of the ox,

the statement of Rabbi Yishmael.

If the one who caused the damage has no money, Rabbi Yishmael agrees that the injured party collects from the ox before collecting from the other assets, because the ox is expressly pledged for this debt. Below the Gemara explains that Rabbi Yishmael’s statement refers to the period before the court judgment, but after the judgment Rabbi Yishmael agrees with Rabbi Akiva in several matters. There are several approaches among the early authorities to defining the pledge of the damaging party according to Rabbi Yishmael after the judgment. According to Rashi and Tosafot, Rabbi Yitzchak, cited by Rabbeinu Peretz, maintains that immediately after the judgment the ox becomes assigned to the injured party according to Rabbi Yishmael as it does according to Rabbi Akiva. Thus, “the ox is appraised by the court” means that it is appraised so that the court can assign it to the injured party. Ketzot HaChoshen [407:1] wrote that this is the view of Tosafot. Tosafot in Gittin [40b] wrote: “He cannot remove him with money even according to Rabbi Yishmael.” The Maharsha, Kernei Re’em, and Penei Yehoshua there explained this in accordance with Rabbi Yitzchak: after the judgment, the injured party cannot be paid off with money. See the Maharsha there, who explained it differently. See also Ramban, Yevamot [46a]. The Chazon Ish maintains that the one who caused the damage may pay him off with money even after the judgment; however, if he does not pay immediately, the court assigns the ox to the injured party. This also appears from the words of the Raavad in the Shita. The Even HaAzel wrote [7:12] that after the judgment the ox is treated as pledged property whose time for collection has arrived, so that any increase in its value belongs to the injured party. If the owner wishes to pay him off with money, he must add the increase in the ox’s value between the judgment and payment. His words will be cited at length below. See the following note. There is another disagreement among the early authorities: Does the injured party collect from the other assets? The Ba’al HaMaor, at the beginning of chapter four, maintains that although the ox is pledged first for payment, if it is lost the injured party must accept money or other assets. Ramban, in his Milchamot there, extensively proves from our sugya that the ox is treated as expressly pledged property, and the pledge applies specifically to the ox or its value. If it is lost, the owner is exempt, and the injured party does not collect from other assets. In any event, the ox is not assigned outright to the injured party; it is merely expressly pledged, like property designated for collection. [The difference between outright assignment and an express pledge concerns the nature of ownership until the time of acquisition, with practical consequences such as who can consecrate the ox.] Below, with Heaven’s help, Ramban’s four proofs will be presented.

Rabbi Akiva says:

The owner of the damaging ox does not pay the value of his ox; rather,

the ox is irrevocably designated

and the injured party takes the damaging ox itself. Thus, the statement in our Mishna, “The injured party takes the ox,” is the opinion of Rabbi Akiva, who says that the ox is irrevocably designated for the injured party, and the one who caused the damage cannot give him money in place of the ox. And the Gemara explains:

In what do they differ

—in what did Rabbi Yishmael and Rabbi Akiva dispute?

Rabbi Yishmael holds: He is a debtor

the one who caused the damage is treated as a debtor of the injured party, and he must pay for the damage caused by his ox, but the injured party has no rights in the goring ox,

and

his entire claim against the owner of the ox is

money that he owes him

that he should pay him the money that he became obligated to pay him.

And Rabbi Akiva holds:

the one who caused the damage and the injured party

are partners

in the ox that caused the damage, and the injured party’s claim is against the ox itself. Therefore, the one who caused the damage cannot discharge his obligation by paying him half the value of the ox in money; rather, he gives him a portion of the ox itself. Likewise, if the ox is worth the full amount of the half-damage, the injured party takes the entire ox.

Rabbi Yishmael holds: The Merciful One warned the court,

the court was charged with appraising the ox that caused the damage and dividing its value. The injured party has no rights in the ox itself; rather, the one who caused the damage must pay the injured party half its value. Therefore, even when the entire ox is worth the amount of the half-damage, the payment is not collected from the ox itself; instead, it is appraised, and the injured party receives its value.

And Rabbi Akiva holds: The Merciful One warned the injured party and the one who caused the damage

that the obligation to divide its value was not addressed to the court but to the one who caused the damage and the injured party. This indicates that the injured party has a share in the ox that caused the damage itself, and therefore they must sell it and divide its proceeds. Likewise, when the ox is worth half the amount of the damage, the injured party takes it as payment for his damage.

And the Gemara discusses:

What difference is there between them

what practical legal difference is there between Rabbi Yishmael and Rabbi Akiva: If

the injured party consecrated it,

the injured party consecrated the goring ox belonging to the one who caused the damage,

there is a difference between them:

according to Rabbi Yishmael, the injured party has no rights in the ox itself and cannot consecrate it, but according to Rabbi Akiva, the consecration takes effect, ]because the ox was definitively assigned to the injured party.

Rava asked Rav Naḥman: If the one who caused the damage sold

his ox that had gored

according to the

view of

Rabbi Yishmael, what is

the ruling? Does his sale take effect or not?

And the sides of the uncertainty are:

Since Rabbi Yishmael said

that the one who caused the damage

is a debtor, and

the injured party has no right to claim the ox itself, but

it is money that he is owed [

a creditor

to him,

it follows that the ox does not belong to the injured party, and if the one who caused the damage sells it,

the sale is valid.