Bava Kamma 33b (לג:) — the Talmud in English

Or perhaps

since

the ox

is subordinated to him for the injured party,

and if so, even according to Rabbi Yishmael,

he has no authority

the tortfeasor has no ability to sell his ox, because by doing so he deprives the injured party of the ability to collect the ox.

He said to him

Rav Naḥman said to Rava: Indeed, even according to Rabbi Yishmael, if he sold it,

it is not sold,

because the ox is subordinated to the injured party.

The Gemara raises an objection:

But it was taught in a beraita,

we learned in a beraita that according to Rabbi Yishmael, if

he sold it,

the tortfeasor

it is sold,

which is contrary to Rav Naḥman.

The Gemara answers: Indeed, the ox is sold, but nevertheless afterward

the injured party returns

the injured party

and collects it

from the purchaser. The Gemara asks:

But since the injured party returns

the injured party

and collects it

from the purchaser,

for

what

purpose

is it said that it is

sold,

what significance does this sale have?

The Gemara answers: Although the purchaser is obligated to return the ox to the injured party, the sale nevertheless takes effect

for plowing,

so that if the purchaser plowed with the goring ox, when the injured party comes to collect the ox, the purchaser is not obligated to give him payment for the use of the ox, because the sale takes effect until the time when the injured party returns to collect the ox.

The Gemara questions Rav Naḥman’s reply to Rava, according to which the tortfeasor cannot sell his ox, and if he sells it, it is sold only for plowing; but when the injured party wishes to do so, he can remove his ox from the purchaser.

Infer from this that if

a person

borrowed

money,

and

afterward

sold

the borrower’s

movable property

that was in his possession to others,

if the lender wishes to collect his debt,

the court collects for him from them

from those who purchased the movable property from him [if the borrower has no money with which to repay his debt].

For just as the owner of the goring ox, although he is merely a debtor, has his ox subordinated to payment of the damages and cannot sell it, so too the movable property of every borrower is subordinated to repayment of the loan, and he is prohibited from selling it; and if he sells it, the court collects from the purchasers.

But we maintain that movable property is not subordinated to a creditor, because the lender does not rely on collecting from movable property. How, then, did Rav Naḥman state that movable property [the tortfeasor’s ox] is subordinated to the loan [the obligation to pay the damages]?

The Gemara rejects this: Rav Naḥman too agrees that movable property is not subordinated to a creditor. As for what Rav Naḥman prohibited the tortfeasor from doing—selling his ox—

that case is different,

in the case of the ox that caused the damage,

for it is considered as though he explicitly designated it as an aphoteki,

as though the tortfeasor explicitly stipulated: If I do not have money with which to pay, collect the debt from the goring ox.

Accordingly, the ox is subordinated to the injured party, and the tortfeasor cannot sell it.

And

the Gemara raises an objection:

But Rava said: If he designated

the borrower

his slave as an aphoteki

for the lender,

and

afterward

sold him

the borrower to another,

if the borrower does not have money with which to pay the lender,

the creditor

returns and

collects from him,

collecting the slave from the purchaser against the debt.

But if the borrower designated

his ox as an aphoteki

for the lender

, and

afterward

sold it

the borrower to another,

the creditor does not collect from him,

the creditor has no right to collect the ox from the purchasers.

It is thus explained that when an ox designated as an aphoteki is sold to another, the lender can no longer collect from it. If so, why did Rav Naḥman prohibit the tortfeasor from selling his ox because of its subordination to the injured party? His words imply that the injured party can collect it if it is sold, yet we find that an ox is not collected from purchasers even when it is an aphoteki?

The Gemara answers: There is no comparison between an ox subordinated to a lender against a debt and an ox subordinated to the injured party against the damage it caused.

For Rav Rava’s own words indicate that there is a distinction between an ox designated as an aphoteki and a slave. Apparently,

as for a slave, what is the reason

why, when a slave designated as an aphoteki is sold by the borrower, the lender can collect him?

It must be

because it has public notice,

when a borrower subordinates his slave and designates him as an aphoteki against his debt, publicity goes out concerning the slave that he is subordinated to a particular person. Therefore, anyone who nevertheless purchases him has caused his own loss, and the lender can collect from him.

Movable property designated as an aphoteki, by contrast, does not become publicly known, and a purchaser of movable property cannot know whether it is subordinated to a loan of the seller. Therefore, the lender has no right to collect from the purchasers.

And since this is so,

this one too,

the ox subordinated to the injured party,

since it gored, there is public notice concerning it

that it is subordinated,

for they call it a goring ox,

the public calls it a goring ox, and consequently everyone knows that those injured by it may come and collect their debt from it. Anyone who purchases it purchases it with this understanding: the injured party can come and collect from it.

Accordingly, Rav Naḥman said that the creditor does not have permission to sell the ox, since it has already become subordinated as an aphoteki to the injured party, and public notice has gone out that it is subordinated. If he sells it, the injured party can collect the ox from the purchaser.

Rav Taḥlifa bar Ma'arava taught before Rabbi Abbahu:

A tam ox that gored:

If he sold it, it is not sold; if he consecrated it, it is consecrated.

The Gemara raises a difficulty: What is the distinction between consecration and sale? If it is possible to consecrate the ox, apparently it should also be possible to sell it; and conversely, if it is impossible to sell it, why is it possible to consecrate it?

To explain the distinction between sale and consecration, the Gemara first raised two uncertainties:

a.

“If he sold it”—who?

Of whom does the beraita speak when it says “if he sold it” and “if he consecrated it”—of the tortfeasor or of the injured party?

b. According to whose opinion does it say “it is not sold” and “it is consecrated”—according to Rabbi Yishmael or according to Rabbi Akiva?

The Gemara explains that Rav Taḥlifa’s statement can be understood as reflecting both Rabbi Akiva and Rabbi Yishmael:

For

if we say,

if we interpret the beraita as speaking of the sale by

the tortfeasor,

then the statement

“if he sold it, it is not sold”—whose opinion is it?

Apparently, it is the opinion of

Rabbi Akiva, who says: the ox becomes the property of the injured party,

and therefore the tortfeasor cannot sell it, since the ox belongs to the injured party. But according to Rabbi Yishmael, the ox is sold for plowing.

And

as for the statement

“if he consecrated it, it is consecrated”—this brings us to

to the opinion of]

Rabbi Yishmael, who says: the value of the ox is assessed in court,

and therefore the tortfeasor can consecrate his ox. According to Rabbi Akiva, however, the tortfeasor cannot consecrate the ox, because it has become the property of the injured party.

It is thus clear that if we interpret the beraita as referring to the tortfeasor’s sale and consecration, we cannot explain it as following either one of them, since this would result in the first clause following Rabbi Akiva and the latter clause following Rabbi Yishmael.

Rather,

it must necessarily be explained that the sale and consecration were performed by

the injured party.

The Gemara raises a difficulty against this interpretation as well, since it cannot be established as following either Rabbi Yishmael or Rabbi Akiva:

For from the statement

“if he sold it, it is not sold,”

it follows that

whose opinion is it? It is Rabbi Yishmael’s

since according to him the injured party has no rights whatsoever in the ox, and consequently cannot sell it. According to Rabbi Akiva, however, the injured party can sell his ox, because it has become his property. Thus, this clause follows Rabbi Yishmael and not Rabbi Akiva.

But from the statement

“if he consecrated it, it is consecrated”—this brings us to

this follows]

the

words of

Rabbi Akiva,

who says that the ox becomes the property of the injured party, and therefore the injured party can consecrate the goring ox. According to Rabbi Yishmael, however, he has no right to consecrate the ox. Thus, this clause of the beraita follows Rabbi Akiva.

It follows that no matter how we interpret the beraita—whether the tortfeasor sold it or the injured party sold it—one clause follows Rabbi Yishmael and the other follows Rabbi Akiva.

The Gemara explains the statement in the beraita, “If he sold it, it is not sold; if he consecrated it, it is consecrated”:

Actually,

the case concerns the sale and consecration by

the tortfeasor, and

the beraita is consistent with

everyone,

both Rabbi Yishmael and Rabbi Akiva.

“If he sold it, it is not sold,”

not only according to Rabbi Akiva is the tortfeasor unable to sell his ox, which has already become the property of the injured party, but

even according to Rabbi Yishmael

the tortfeasor cannot sell it, and if he sold it, it is not sold,

for it is subordinated to the injured party.

it—the one who caused the damage—

Since by damaging the ox mortgaged to the injured party, he thereby caused the injured party to have no means of collecting his half-damage, and concerning this it was said: “What he did stands,” and he is not required to pay the difference up to half the damage.

The Gemara asks: Is this

obvious?

Why did Rav Huna need to say, “This indicates”? Is it not clear that this is the reason for exempting one who slaughters an ox mortgaged to the injured party?

The Gemara answers: Had Rav Huna not said that this is the reason for exempting one who slaughters an ox mortgaged to the injured party, it could have been said:

Lest you say:

Only

there,

in the case where the ox was slaughtered, what he did stands and the tortfeasor is exempt, because

he

is not actually causing damage,

as he can say

to the injured party:

“I have not deprived you of anything at all,”

because the carcass still exists,

for

he can

say to him: “I merely took air from you,”

for I only removed the animal’s breath, and this is not actual damage.

But in general,

if a person damages his fellow’s lien in a manner in which the lien itself no longer exists,

he should be liable.

Rav Huna teaches us

that the reason given by the tanna of the beraita is that one who damages his fellow’s lien is exempt—even if the lien itself no longer exists.

The Gemara challenges this:

Rabba also said this,

that one who damages his fellow’s lien is exempt even when, as a result of his damage, the lien is completely nullified?

As Rabba said: One who burns his fellow’s documents

[debt documents]

is exempt,

because the documents are not actual property; rather, they are evidence that the debtor is encumbered to pay his debt.

It follows that Rabba had already explained that one who damages his fellow’s lien is exempt even in a case where he can no longer collect his debt

because of the damage;

why, then, did Rav Huna need to derive this from the beraita?

The Gemara answers: Rabba’s statement cannot prove the law that one who damages his fellow’s lien is exempt.

Lest you say: There,

Rabba exempted him because

he said to him,

the one who burned the documents, to the owner of the documents:

“I burned mere paper from you,”

for you were not harmed with actual property, but only with mere paper.

But

one who actually damages his fellow’s lien—for example,

where

a field was mortgaged to a creditor and

he dug in it

the debtor

pits, ditches, and caves, he should be liable,

since he caused actual damage.

Rav Huna therefore teaches us

that this is why Rav Huna needed to explain that the exemption in the beraita is because one who damages his fellow’s lien is exempt, indicating that even one who damages the lien itself is exempt.

For here,

when the tortfeasor slaughtered the ox mortgaged to the injured party, it is

as though the debtor had dug in it

in the field mortgaged to the creditor

pits, ditches, and caves.

And

concerning this

he said: “What he did stands,”

and the tortfeasor is exempt. Therefore, Rav Huna stated, “This indicates that one who damages his fellow’s lien is exempt,” in order to teach that even if he damaged the lien itself, thereby nullifying his fellow’s lien, he is exempt.

The Gemara returns to explain what is stated in the beraita: “

Once the case has been brought to court, if

the creditors preceded and collected it, whether he became indebted before he caused the damage, or he caused the damage before he became indebted, they have accomplished nothing, because he pays only from the ox itself.”

The Gemara discusses this:

Granted,

if

he caused the damage before he became indebted,

the creditors cannot collect the ox, since

the injured parties preceded them,

and the ox became encumbered to the injured party before it became encumbered for their debt.

But

if

he became indebted before he caused the damage,

why can they not collect the ox? After all,

the creditor’s

debt

claim preceded,

as the ox became encumbered first to the creditor and only afterward to the injured parties?