Bava Kamma 34a — the Talmud in English

And even

concerning what is stated

“he caused damage before he became indebted”

the Gemara asks: in practice,

the creditor precedes

and seized the ox; if so, what difference does it make that the lien of the injured party preceded? In the end, the creditor seized it, and one does not remove it from his possession?

And the Gemara concludes the question: Can it be said from this beraita that

infer from it that

a

creditor

whose date is

later

than another creditor

who preceded

him,

and collected

the latter,

what he collected, he did not collect?

The Gemara answers:

No; I will say to you that always

a later creditor who preceded and collected,

what he collected, he collected,

because although his date is later, if he seized it, one does not remove it from his possession.

And

as for what is stated in the beraita, that when he caused damage before he became indebted their seizure is ineffective,

it is different there, for he says to him

the injured party says to each of the creditors:

“If it had been in your possession, I would have collected it from you.”

If you had collected the ox before it caused damage to my ox, and the ox had damaged me while it was in your ownership, I would have collected it from you. Therefore, even when the ox caused damage while it was still with the one who caused the damage [who is also a creditor], my right to collect it precedes your right.

For from this ox that damaged I collect

I collect my debt from that same ox that caused the damage.

And for the same reason, even when the loan preceded the damage and the ox became liened to the lender before it became liened to the injured party, the injured party cannot collect from it, and if he collected, he accomplished nothing.

The Sages taught:

a.

An ox

that is innocuous,

worth two hundred

zuz,

which gored an ox

belonging to another,

worth two hundred, and injured it by fifty zuz,

and it became worth one hundred fifty zuz,

and

after some time

the injured

ox appreciated,

and stood at four hundred zuz,

twice its value before the goring.

Rather,

had it not damaged it, it would have stood at eight hundred zuz,

and it follows that the goring caused it not to appreciate by four hundred zuz.

The owner of the damaging ox

gives

the injured party half the value of the ox

as

it was worth

at the time of the damage,

namely, twenty-five zuz. And the one who caused the damage has no right to claim: “I caused you no damage at all,” since its value is more than the two hundred that it was worth at the time of the goring. For the injured party can say: Had it not been for the goring, my ox would have continued to appreciate until eight hundred zuz, and therefore he must pay for the damage of the goring. But he is exempt for the four hundred that he caused it not to appreciate. b.

And

if at the time of the goring its value decreased by fifty zuz and it became worth one hundred fifty zuz, and afterward it further

depreciated,

the owner of the damaging ox pays half-damage

as

the damage was

at the time of standing in judgment,

for example, if it depreciated by another fifty, the owner of the damaging ox gives him one hundred zuz from the body of the damaging ox, and we do not assess the half-damage at the time of the goring, namely twenty-five zuz..

Below, in the Gemara, it is explained that the reason is that the continuation of the depreciation is a result of the initial goring.

c. If after the goring

the damaging

ox

appreciated,

for example, it became worth two hundred forty, the injured party has no right to claim, “I have a one-eighth share in it, and I will take thirty zuz”; rather,

he gives him according to the time of the damage,

twenty-five zuz.

d. And if after the goring

the damaging

ox depreciated, for example, it became worth one hundred sixty, the one who caused the damage is not liable to pay twenty-five zuz; rather, he gives the injured party a one-eighth share of its value

at the time of standing in judgment,

namely, twenty zuz.

The Gemara discusses the explanation of the beraita:

The Master said: If the damaging ox appreciated

for example, it became worth two hundred forty,

he gives according to the time of the damage,

twenty-five zuz, and he is not liable to give one-eighth of its value at the time of standing in judgment.

Who is it?

Who is the author of this statement?

It must be

Rabbi Yishmael, who says

that the owner of the damaging ox

is a creditor, and it is money that he owes him,

and the injured party does not become a partner in the body of the ox..

The Gemara objects:

Say the latter clause: If it depreciated,

the damaging ox, and became worth one hundred sixty zuz, he gives the injured party one-eighth of its value

at the time of standing in judgment,

namely, twenty zuz.

Is it then that they assess the injured party as though he were a partner in the animal, and his share has decreased? And if so,

we have arrived at the opinion of Rabbi Akiva, who says that they are partners.

Is it possible to explain the beraita in such a manner that the

first clause

is the words of

Rabbi Ishmael, and

the

final clause

is according to

Rabbi Akiva?

The Gemara answers:

No!

The beraita

entirely

is according to

Rabbi Akiva.

And

that which was stated in the beraita: The gain of the damaging party is as of the time of the damage, and he does not give him an eighth of his share at the time of standing in judgment,

here, with what are we dealing? When he fattened it,

the damaging party invested in fattening the ox, and it would not have appreciated in this manner on its own; therefore, the injured party has no share in its appreciation.

The Gemara objects:

The Gemara objects:

If

as you said, the beraita is speaking

when he fattened it,

the damaging party, and it did not appreciate on its own,

say the first clause: The injured party’s gain

and it

stood at four hundred zuz,

whereas had it not gored, it would have been worth eight hundred,

he gives him

the damaging party

as of the time of the damage.

And presumably the first clause is similar to the final clause; just as in the final clause the Gemara established the case as one in which the fattening was done

by

the owner of the animal [the damaging party], so too the first clause speaks of a case in which the fattening was done by the owner of the animal [the injured party].

And

if

it is speaking

when he fattened it,

the injured party,

is it necessary to say

that the damaging party is liable and cannot exempt himself with the claim, “What loss did I cause you?” Is it not obvious that he cannot make this claim, because the injured party improved it for himself, and the damaging party cannot exempt himself on account of the injured party’s improving his animal? What, then, is the novelty in the first clause, that the damaging party is liable to pay?

The Gemara answers:

Rav Pappa said: The first clause can be found

it can be established as a case in which the ox appreciated in both ways,

both when he fattened it and when it appreciated on its own,

and it was necessary to inform us

the novelty is

that where it appreciated on its own,

also

he gives him as of the time of the damage,

and he cannot say, “What loss did I cause you?”

But the

final clause cannot be found

it cannot be established

except when he fattened it,

the damaging party fattened his animal; therefore, if it appreciates, he is not liable to give the injured party anything of what it appreciated, even according to Rabbi Akiva, who says that they are partners.

It was stated in the beraita:

If it became emaciated,

the injured ox, the damaging party gives him half of all the emaciation

as of the time of standing in judgment.

And the Gemara discusses:

Emaciation due to what? If you say that it became emaciated due to labor,

why is the damaging party liable to pay for the additional emaciation?

Let him say to him: You cause it to become emaciated, and I will pay?

And the Gemara explains:

Rav Ashi said: It became emaciated because of the blow,

the original goring,

for

he said

the injured party to the damaging party:

“The horn of your ox is buried in it.”

Mishna:

It is stated in the Torah concerning an innocuous ox that gored another ox [Exodus 21:35]: “And if an ox of a man gores the ox of his fellow, they shall sell the living ox and divide its money, and they shall also divide the dead one.”

And it was already explained in the preceding Mishna that if the goring ox is worth exactly half the damage that it caused to the injured party, the injured party takes the ox.

But this verse speaks of a case in which the goring ox is worth more than half the damage, and therefore it is necessary to sell it in order to pay half the damage from its proceeds. Rabbi Judah and Rabbi Meir dispute which case the verse spoke of, and how the damaging party and the injured party fulfill what is stated: “And they shall divide its money, and they shall also divide the dead one.”

An ox

innocuous

worth two hundred

zuz,

that gored an ox

another

worth two hundred

zuz,

and the carcass

of the injured ox

is worth nothing,

it is impossible to collect from the body of the goring ox, because it is worth two hundred and is liable to pay only one hundred, which is half the damage.

But what shall they do?

Rabbi Meir said: Concerning this it is stated “‘

They shall sell the living ox and divide its money,’”

that is, concerning this case the verse stated that they shall sell the goring ox and receive two hundred for it, and they shall pay the half according to the law of an innocuous ox, half-damage.

Rabbi Judah said to him

to Rabbi Meir: Indeed,

so

is the

halakha,

that he pays him one hundred zuz, which is half the damage.

But the verse did not speak of this case, for according to your words,

you fulfill

only the first part of the verse,

“They shall sell the living ox and divide its money,” and you do not fulfill

the second part,

“and they shall also divide the dead one,”

since the carcass is worth nothing, and how can they divide it.

And

in

which

manner will the two parts of the verse be fulfilled according to Rabbi Judah?

In

this case, an ox

innocuous

worth two hundred

zuz,

that gored an ox worth two hundred, and the carcass is worth fifty zuz,

so that the damage is one hundred fifty zuz.

They assess the living ox, and the injured party and the damaging party divide its value between them, and each one takes one hundred zuz.

And they likewise divide the value of the carcass between them, and each one takes twenty-five zuz from it.

It follows that each one receives one hundred twenty-five zuz, while, on the other hand, each one loses seventy-five zuz.

For

thus what is stated is fulfilled: “And they shall divide its money, and they shall also divide the dead one,” for

this one

the injured party

takes half the living one,

one hundred zuz,

and

likewise

half the dead one,

twenty-five zuz.

And this one

the damaging party

takes half the living one and half the dead one.

Gemara:

The Sages taught: An ox worth two hundred that gored an ox worth two hundred, and the carcass is worth fifty zuz.

How shall they divide the damage?

This one takes half the living one and half the dead one, and this one takes half the living one and half the dead one.

And this is the ox

innocuous

spoken of in the Torah,

the verse spoke of this case,

the words of Rabbi Judah.

Rabbi Meir says: This is not the ox spoken of

in the Torah,

even though this is indeed the proper division, the verse did not speak of this case.

Rather,

in this case,

an ox worth two hundred that gored an ox worth two hundred, and the carcass is worth nothing—concerning this it is stated: “They shall sell the living ox and divide its money.”

And the baraita raises against Rabbi Meir Rabbi Judah’s question in the Mishna:

“Rather, how do I understand ‘and they shall also divide the dead animal’?”

And the baraita answers: Rabbi Meir understands the verse in a case in which the carcass is worth nothing, and what is stated, “and they shall also divide the dead animal,” does not refer to dividing the carcass; rather, the intention is, according to the

depreciation

that the

death

caused the injured party, whose ox now is worth nothing,

they divide from the living animal

they collect half of it from the living animal.

And accordingly, this is the explanation of the verse: “And they shall sell the living ox and divide its money,” and how shall the division be made? “And they shall also divide the dead animal,” according to the value of the damage in the dead animal.

But the intention of the verse is not to say that they divide the entire living ox between them. Certainly, they do not divide the dead animal; rather, the living animal belongs to the one who caused the damage, and from it he pays the amount of the damage, while the dead animal belongs to the injured party, and the one who caused the damage has no right whatsoever in it.

And consequently, even in a case in which the carcass is worth fifty, the one who caused the damage has no share whatsoever in it; rather, he is judged as though he reduced the injured party by one hundred fifty, and he pays one hundred twenty-five.

And the Gemara wonders:

“Granted,”

for when an ox worth two hundred gored an ox worth two hundred, and the carcass is worth fifty zuz, there is no legal disagreement between them, since

both Rabbi Meir and Rabbi Judah

hold that

this one,

the injured party,

, takes one hundred twenty-five, and this one

the one who caused the damage

takes one hundred twenty-five.

For according to Rabbi Judah, the division is in the living animal: he pays half of it, namely one hundred, and in the dead animal he pays half of it, namely twenty-five. Thus, each one loses seventy-five zuz. And according to Rabbi Meir, they assess the value of the carcass, and he pays the damage less the value of the carcass, namely seventy-five zuz.

And

if so,

“what is the difference between them,”

in what did they disagree?

Rava said: “The depreciation of the carcass is the difference between them.”

If the value of the carcass depreciated from the time of its death until they came to divide its value,

Rabbi Meir holds

that the

depreciation of the carcass

is at his expense,

that it belongs to the injured party;

for the carcass belongs to him, and he lost from his share. Thus, if the carcass was completely spoiled, the one who caused the damage will pay him only one hundred.

And Rabbi Judah holds

that the

depreciation

of the

carcass

is at his expense,

that half of it belongs to the one who caused the damage;

therefore, if the carcass was completely spoiled, the one who caused the damage pays half the value of the loss, namely half of the twenty-five zuz that he had in the carcass, twelve and a half zuz.