Bava Kamma 34a (לד.) — the Talmud in English

And even

regarding what was stated:

“if it caused damage before he became liable”

the Gemara raises a difficulty: in practice,

the creditor comes first

and seized the ox. If so, what difference does it make that the injured party’s lien preceded his? Ultimately, the creditor seized it, and one does not remove property from his possession.

The Gemara concludes its question: Can it be said that from this beraita one may

derive

that

a creditor

whose date

is later

than that of another creditor,

who preceded

him,

and collected

the latter,

does not acquire what he collected?

The Gemara answers:

No; I will say to you that in fact

a later creditor who preceded the earlier creditor and collected

acquired what he collected,

because although his date was later, once he seized the property, it is not removed from his possession.

And

as for what was stated in the beraita—that when the ox caused damage before he became liable, their seizure is ineffective—

there it is different, for the injured party says to him

to each of the creditors:

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

Had you collected the ox before it damaged 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 in the possession of the one who caused the damage [who is also a creditor], my right to collect it precedes your right.

“For it is from this ox that damaged me that I collect.”

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

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

The Sages taught:

1.

An ox

that was harmless,

worth two hundred

zuz,

which gored an ox

belonging to another,

worth two hundred, and damaged it by fifty zuz,

so that 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.

But

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. The one who caused the damage cannot claim: “I did not damage you at all, since it is worth more than the two hundred zuz 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 it was worth eight hundred zuz; therefore, he must pay for the damage caused by the goring. But he is exempt for the four hundred zuz of appreciation that he caused it to forgo. 2.

And

if, at the time of the goring, its value declined by fifty zuz and it became worth one hundred fifty zuz, and later it

depreciated further,

the owner of the damaging ox pays half the damage

as

the damage was valued at

the time of the court hearing,

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

The Gemara explains below that the reason is that the continued depreciation is a consequence of the initial goring.

3. If after the goring

the damaging

ox

appreciates,

for example, it becomes worth two hundred forty, the injured party cannot 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.

4. And if after the goring

the damaging ox depreciates,

for example, it becomes 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 the court hearing,

namely, twenty zuz.

The Gemara discusses the meaning of the beraita:

The Master said: If the damaging ox appreciates,

for example, it becomes 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 the court hearing.

Who is the author?

Who is the authority of this statement?

It must be that

it is 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 ox itself.

The Gemara raises a difficulty:

Come and hear the latter clause: If the damaging ox depreciates

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

at the time of the court hearing,

namely, twenty zuz.

Thus, the injured party is judged as though he were a partner in the animal, and his share has diminished? And if so,

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

Could the beraita perhaps be explained in such a way that its

first clause

is the statement of

Rabbi Yishmael, while

its

latter clause

is according to

Rabbi Akiva?

The Gemara answers:

No!

The

entire beraita

is according to

Rabbi Akiva.

And

as for what was taught in the beraita: The increase in value of the damager’s animal is assessed as of the time of the damage, and he does not give the injured party one-eighth of his share as of the time of standing trial,

with what are we dealing here? With a case in which he fattened it;

the damager invested in fattening the ox, and it would not have increased in value in this manner on its own. Therefore, the injured party has no share in that increase.

The Gemara objects:

The Gemara is astonished:

If

as you said, the beraita is speaking

of a case in which he fattened it,

and the animal did not increase in value on its own,

say that the first clause states: The increase

of the injured party’s animal

and it came to be worth four hundred zuz,

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

he gives him

the damager

as of the time of the damage.

Presumably, the first clause is analogous to the latter clause; and just as in the latter clause the Gemara established the case as one in which the fattening was done

by

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

And

if

it is speaking

of a case in which he fattened it,

the injured party,

is it necessary to say

that the damager is liable and cannot exempt himself by claiming, “What loss have I caused you?” Is it not obvious that he cannot make this claim, since the injured party increased the value of his own animal? The damager cannot exempt himself on account of the injured party’s having increased the value of his animal. What, then, is the novelty of the first clause, that the damager must pay?

The Gemara answers:

Rav Pappa said: The first clause can be found

in a case in which the ox increased in value in either of the two ways,

whether he fattened it or whether it increased on its own,

and it was necessary to teach us

the novelty

that where it increased on its own,

as well,

he gives him according to its value at the time of the damage,

and he cannot say, “What loss have I caused you?”

But the

latter clause cannot be found

and cannot be established

except where he fattened it,

the damager fattened his animal. Therefore, if it increased in value, he is not liable to give the injured party any portion of the increase, even according to Rabbi Akiva, who says that they are partners.

The beraita states:

If it became emaciated,

the injured party’s ox, the damager gives him half of the entire depreciation

as of the time of standing trial.

The Gemara discusses this:

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

why must the damager pay for the additional depreciation?

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

The Gemara explains:

Rav Ashi said: It became emaciated due to the wound,

the original goring,

as

he said

the injured party to the damager:

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

Mishna:

The Torah states concerning a tam ox that gored another ox [Exodus 21:35]: “And if a man’s ox gores his fellow’s ox, and they sell the living ox and divide its money, and they shall also divide the carcass.”

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

However, this verse is speaking of a case in which the goring ox is worth more than half the damages, and therefore it is necessary to sell it in order to pay half the damages from its proceeds. Rabbi Yehuda and Rabbi Meir disagree as to which case the verse is discussing and how the damager and the injured party fulfill the statement, “And they shall divide its money, and they shall also divide the carcass.”

An ox

that is a tam,

worth two hundred

zuz,

that gored an ox

belonging to another,

worth two hundred

zuz,

and the carcass

of the gored ox

is worth nothing,

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

What, then, shall they do?

Rabbi Meir said: Concerning this it is stated, “

And they shall sell the living ox and divide its money,”

meaning that the verse stated this with reference to such a case: They sell the goring ox, receive two hundred in exchange for it, and pay half of the proceeds—one hundred—as the half-damages payment of a tam ox.

Rabbi Yehuda said to him

Rabbi Meir: Indeed,

yes,

that is the

halakha,

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

But the verse was not speaking of this case, for according to your view,

you fulfill

only the first part of the verse,

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

the second part,

“and they shall also divide the carcass,”

since the carcass is worth nothing. How could they divide it?

And

in

which

case will both parts of the verse be fulfilled according to Rabbi Yehuda?

In

this case: An ox

that is a tam,

worth two hundred

zuz,

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

so that the damage amounts to one hundred fifty zuz.

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

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

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

Thus

the statement “And they shall divide its money, and they shall also divide the carcass” is fulfilled, for

this

the injured party

takes half the living animal,

one hundred zuz,

and

likewise

half the carcass,

twenty-five zuz.

And this

the damager

takes half the living animal and half the carcass.

Gemara:

The Sages taught: An ox worth two hundred, which gored an ox worth two hundred, whose carcass is worth fifty zuz.

How do they divide the damage?

This one takes half the living animal and half the carcass, and that one takes half the living animal and half the carcass.

And this is the ox

that is a tam

spoken of in the Torah;

the verse is speaking of this case.

These are the words of Rabbi Yehuda.

Rabbi Meir says: This is not the ox spoken of

in the Torah.

Although this is indeed the proper division, the verse was not speaking 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: “And they shall sell the living ox and divide its money.”

The beraita challenges Rabbi Meir with Rabbi Yehuda’s question in the Mishna:

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

The beraita answers: Rabbi Meir interprets the verse as referring to a case in which the carcass is worthless, and the phrase “and they shall also divide the dead animal” does not refer to dividing the carcass. Rather, the intention is that, according to the

depreciation

[that it caused] the

death

caused to the injured party, whose ox is now worthless, they

divide the live animal

collect half of the payment from the live animal.

Accordingly, this is the meaning of the verse: “And they shall sell the live ox and divide its money,” and how is the division to be made? “And they shall also divide the dead animal”—according to the value of the damage represented by the dead animal.

However, the verse does not mean that they divide the entire live ox between them. Certainly, they do not divide the dead animal. Rather, the live animal belongs to the one who caused the damage, and from it he pays the amount of the damage; the dead animal belongs to the injured party, and the one who caused the damage has no rights whatsoever in it.

Consequently, even in a case where the carcass is worth fifty, the one who caused the damage has no share in it. Rather, he is treated as though he diminished the injured party’s property by one hundred fifty, and he pays one hundred twenty-five.

The Gemara asks:

“Granted,”

for when an ox worth two hundred gores an ox worth two hundred, and the carcass is worth fifty zuz, there is no practical dispute between them, since

both Rabbi Meir and Rabbi Yehuda

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 Yehuda, the division is made with regard to the live animal: he pays half of it, namely one hundred, and with regard to the dead animal he pays half of it, namely twenty-five. Thus, each of them loses seventy-five zuz. And according to Rabbi Meir, the value of the carcass is assessed, and he pays the amount of the damage less the value of the carcass, namely seventy-five zuz.

And

if so,

what difference is there between them,

in what do they disagree?

Rava said: The depreciation of the carcass is the difference between them,

if the value of the carcass declined from the time of its death until they came to divide its value,

Rabbi Meir holds

that the

depreciation of the carcass

is at the expense of

the injured party,

since the carcass belongs to him, and he is the one who suffered the loss from his share. Thus, if the carcass became entirely worthless, the one who caused the damage would pay him only one hundred.

And Rabbi Yehuda holds

that the

depreciation

of the

carcass

is at the expense of the one who caused the damage,

half of it,

and therefore, if the carcass became entirely worthless, the one who caused the damage pays half the value of the loss—namely, half of the twenty-five zuz that had belonged to him in the carcass, twelve and a half zuz.