Bava Kamma 34b (לד:) — the Talmud in English

the gored ox]

[twenty zuz]

[twelve and a half selaim] and it is found that the ox damaged an ox five times its worth, and from the damaged ox remains an amount worth more than twice the trespasser.

the

From the language of the Gemara it is implied that it is impossible to let the trespasser profit by reason of his damage, and accordingly one must say that he shall receive nothing in the damage but also pay nothing, for by the partition he is not obligated to pay. But Rashi explained the Gemara's astonishment as "and where have we found a trespasser who is paid insofar as he does not lose." And Maharsha wrote that Rashi's intent is: "where have we found a trespasser who is paid in the case that he does not lose." And from his words it is implied that Rabbi Yehuda comes to say that we have not found that the trespasser does not lose anything, and one needs explanation whence that the trespasser must lose. Moreover one must discuss how much the trespasser must lose — whether any loss suffices, or in the case the trespasser does not lose, he takes nothing in the praise and pays as originally obligated. And Penei Yehoshua explained that the main intent of Rabbi Yehuda in the baraita is to prove that the division is in the depreciation that the carcass was diminished and not half the live and half the dead [except in the case that by this division exactly half the damage results], and therefore he said "and would it be possible that the trespasser profit," and likewise it is difficult to the same degree "and would it be possible that the trespasser not lose" for clearly if he damaged and the damaged one has a loss he must pay and not be exempt by the division of half the live and half the dead, and necessarily the owner insists in such a case that they do not divide half the live and half the dead but rather put the loss of the carcass and give the whole trespasser.

twenty zuz

Rashi explained that although the verse “He shall surely pay” is stated with regard to a gored ox, nevertheless, since two payments are mentioned, we attribute one of them to an unaccustomed ox and one to a gored ox. The Chazon Ish explained that with regard to a gored ox, the verse is needed for its own matter, to establish that the one who caused the damage is liable to pay. But with regard to an unaccustomed ox, whose liability to pay has already been mentioned—as it is stated, “and they shall sell the living ox”—the additional verse must teach that even with regard to an increase in value, the one who caused the damage does not take anything, because his law is that he pays. From here the Chazon Ish inferred from Rashi that specifically the owner of an unaccustomed ox divides the increase with the injured party. Therefore, the verse was needed to say that he does not take money directly, but only reduces his payments. The owner of a gored ox, however, does not divide the increase. Otherwise, if the owner of a gored ox also divided the increase, how could the Gemara derive the law of an unaccustomed ox from the verse “He shall surely pay,” which is stated with regard to a gored ox? Perhaps the repetition of “He shall surely pay” teaches that with regard to a gored ox the owners do not take anything. Necessarily, according to Rashi, it is obvious that the owner of a gored ox does not divide the increase, and that this law was stated only with regard to an unaccustomed ox. Therefore, the extra wording that they do not take is derived for an unaccustomed ox. But Maimonides, the Tur, and the Shulchan Arukh maintained that the owner of a gored ox also divides the increase with the injured party. The Yam Shel Shelomo wrote that the source of their view is the verse “He shall surely pay,” which is stated with regard to a gored ox. This seemingly requires explanation: If so, how can this be derived for an unaccustomed ox, after the entire verse is needed for the gored ox, to teach that the owners pay and do not take, as the Chazon Ish asked regarding Rashi? But from the words of the Yam Shel Shelomo it appears that the principal teaching, “the owners pay,” is not merely a rule concerning the laws of dividing the increase, preventing the owners from taking it. Rather, it reveals the manner of the division: The increase never comes directly into the owners’ possession, because the increase in the carcass’s value is not their monetary right; it merely reduces the original damage. As a result, any increase beyond the amount of the damage means that the owners have nothing left to pay. Accordingly, it is possible to derive the law for an unaccustomed ox from the fact that the owners do not pay in the case of a gored ox. Once it has been established that the increase reduces the damage, the damage is reduced in both an unaccustomed ox and a gored ox, and it is obvious that if the increase grows enough to cover the damage, the owners are exempt. The fact that the owners do not take anything is also clear, since from the outset their entire right to the increase was only to reduce the damage, not an actual monetary right. For this reason the Rashash [and the explanation of this matter in the Even HaEzel Monetary Damages 7:10] reconciled the question of the Lechem Mishneh there: Why did Maimonides not mention at all the law that the owners pay and do not take? Since Maimonides holds that the owner of a gored ox also divides the increase, it necessarily follows that the division of the increase serves to reduce the damage represented by the animal. If so, it is obvious that the owners do not take anything: Since the increase does not come into the possession of the one who caused the damage, but reveals the original value of the damage, once the increase has covered the damage, the connection between the one who caused the damage and the increase ends. The Gemara needed to derive this point so that we would not mistakenly think that the increase actually comes into the possession of the one who caused the damage. But once Maimonides derived from this exposition the law governing how the increase is divided, it is again clear that the owners do not take anything.

It follows that, according to Rabbi Yehuda in accordance with Rabbi Yohanan, there are two laws concerning the appreciation of a carcass: a. If, after the appreciation, the one who caused the damage still has an amount left to pay, he shares in the appreciation with the injured party and deducts it from the sum of the payment. b. If the appreciation is greater than the amount the one who caused the damage was required to pay, he does not take a share of the appreciation for himself.

The Gemara raises a difficulty, both according to Rava and according to Rabbi Yohanan, concerning the very position of Rabbi Yehuda:

It was explained above in the Gemara that Rabbi Yehuda disputes Rabbi Meir concerning the method of calculating half-damages. According to Rabbi Yehuda, the living animal and the carcass are assessed and divided, whereas according to Rabbi Meir, the value of the carcass is assessed according to what it was worth while it was alive.

Accordingly, if an ox worth fifty zuz [twelve and a half sela] gored an ox worth forty zuz [ten sela], and the carcass is worth twenty zuz [it emerges that the ox suffered damage equal to half its value], according to Rabbi Meir one assesses how much the ox actually lost—twenty zuz—and he pays half of that, namely ten.

But according to Rabbi Yehuda, they divide the living animal, worth fifty, between them, so that each receives twenty-five. They also divide the carcass, worth twenty, so that each receives ten. Thus, each one takes thirty-five zuz.

It follows that the owner of the ox that caused damage of only twenty pays half the value of the living animal, which is twenty-five, and must also give his share in the carcass; thus, he pays thirty-five instead of twenty.

Rab Aḥa bar Taḥlifa said to Rava:

If so,

if Rabbi Yehuda holds that the living animal and the carcass are assessed,

we find according to Rabbi Yehuda

a case in which a

tam pays more than half-damages,

and

how can it be possible for it to pay in this manner? Surely

the Torah said: “They shall sell the living ox and divide its money,”

which implies that the one who caused the damage pays only half-damages. The Gemara answers: In this case,

Rabbi Yehuda holds

that the division is not of half the living animal and half the carcass. Rather, one assesses the

depreciation caused by the death

to the injured animal, which in the case under discussion is twenty zuz, and this sum

is divided in half against the living animal—half is collected from the living animal.

It follows that according to Rabbi Yehuda there are two types of half-damage payments. When, after assessing the living animal and the carcass, the payment does not exceed half-damages, one assesses half the living animal and half the carcass. But when this assessment causes the injured party to receive more than his share, only the carcass is assessed.

The Gemara raises a difficulty:

From where does he derive

that Rabbi Yehuda recognizes two possible methods of assessment?

Perhaps you might say that he learned this

from

what is stated,

“and they shall also divide the carcass,”

as Rabbi Meir expounded.

Indeed,

from this very verse

Rabbi Yehuda extracted

and expounded

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

How, then, is it possible to expound from the same verse that they divide according to the depreciation caused by the death?

The Gemara explains: In fact, the verse comes to teach that one assesses the depreciation caused by the death, as Rabbi Meir says. However,

if

it was stated only for

this

purpose, the verse should have written,

“and the carcass

shall be divided.”

For what

purpose

was the additional word

“also

the carcass shall be divided”?

Infer from it two laws,

that there are cases in which they pay only the depreciation caused by the death, and cases in which they collect half the living animal and half the carcass..

Mishna:

There is

a case in which a person

is liable

to bear and pay

for

an act

of damage, or the like, that his

ox

performed, because he did not guard it properly..

And

if he performed that same act himself, he would be

exempt for his own act.

And conversely, it is possible that a person would be

exempt

from bearing and paying

for the act of his ox, and

if he performed that same act himself, he would be

liable for his own act.

The Mishna specifies: Exempt for the act of his ox and liable for his own act—

how?

If his ox caused embarrassment

to a person by injuring him, its owner is

exempt

from payments for embarrassment,.

For we maintain that “when a man gives a blemish to his fellow,” and not an ox to its fellow.

And

if

he,

the person who caused the damage himself,

caused embarrassment

to his fellow,

, he is liable

for payment for his embarrassment..

If his ox blinded the eye of his slave and knocked out his tooth,

the owner of the ox is

exempt,

and the slave does not go free.

And

if

he,

the owner of the slave,

blinded the eye of his slave and knocked out his tooth, he is liable, [See the note concerning the nature of the exemption and liability]

and the slave goes free. Liable for the act of his ox and exempt for his own act—how?

If his ox injured his father and mother

of its owner,

the son, who owns the ox, is

liable

for payment for their injuries.

And

if

he himself injured his father or mother,

and inflicted a wound upon them,

he is exempt

from payment,

because he becomes liable for his life.

If his ox ignited another person’s stack

belonging to another person

on Shabbat.

The owner of the ox

is liable,

and pays half the damage, since this is an unusual act on the part of the ox, and its status is that of keren: if it is innocuous, it pays half the damage.

And

if

he

the person himself

ignited his fellow’s stack

belonging to his fellow

on Shabbat, he is exempt

from payment,

because

he becomes liable for his life

for desecrating Shabbat, and anyone who is liable for the death penalty is exempt from monetary payments.

Gemara:

It was taught:

he taught

Rabbi Abbahu

a beraita

before Rabbi Yoḥanan:

All those who cause damage,

one who performs on Shabbat a labor that has no benefit whatsoever but merely damages an existing object,

are exempt

from punishment.

For the Torah prohibited performing on Shabbat only labors that involve improvement, since they fall within the category of creative labor, whereas one who causes damage is not performing creative labor.

Except for one who inflicts a wound,

one who draws blood, who, although he damages the body upon which he inflicts the wound, is liable to the death penalty.

And

so too

one who kindles

a stack on Shabbat is liable to the death penalty, despite the fact that he causes damage.

He said to him,

Rabbi Yoḥanan said to Rabbi Abbahu:

Go out and teach it outside,

go and teach this beraita outside the study hall, and not here!

For this beraita, which imposes liability for

one who inflicts a wound and one who kindles

even where the act is damaging,

is not a valid teaching.

It is not a Mishna that should be taught, since according to Rabbi Yoḥanan all those who cause damage on Shabbat are exempt, including one who inflicts a wound and one who kindles.

And if you should say

that it

is a Mishna,

that it is possible to teach it, then it must be taught as follows: All those who cause damage are exempt, including one who inflicts a wound and one who kindles.

Except for

one who inflicts a wound

and draws blood

when

he

needs

the blood to feed it

to his dog,

for although he damages the body upon which he inflicts the wound, on the other hand he benefits from having blood for his dog. Thus, he is not causing complete damage, since he needs this damage. And so too,

one who kindles

is liable

when

he burns wood because he

needs its ashes,

for although the burning damages the wood, he needs this damage.

And any damage that involves a benefit is not judged as damage, but as improvement, and one is liable.

But one who draws blood without a need, and likewise one who simply kindles a stack, is exempt under the law governing one who causes damage.

Rabbi Abbahu raises an objection to Rabbi Yoḥanan from that which

we learned

in our Mishna:

If his ox ignited a stack on Shabbat, he is liable; but if he himself ignited a stack on Shabbat, he is exempt.

And

the Gemara infers:

It teaches, “he himself

who ignited the stack

,” analogous to his ox,

as similar to his ox that ignited a stack.

This implies that if a person performs the same act of igniting a stack as his ox, he is liable to the death penalty and exempt from payment. For if this is not the explanation, how could the Mishna state, “There is liability for the act of his ox and exemption for his own act”? The manner in which the ox ignites is not similar to the manner in which a person ignites.

It must be that in the same act for which the ox is liable, the person himself is exempt [from payment]. Thus, it is clear that the case also concerns one who kindles without a need, since

as for his ox, which does not need it,

just as an ox that ignites a stack does not ignite it for a purpose, since it lacks the understanding to ignite it for any particular aim.