Bava Kamma 34b — the Talmud in English

Abaye said to Rava:

If so, we find that according to Rabbi Yehuda

there is a way in which the law of a

unaccustomed

ox

will be

more stringent than

the law of a

gored ox,

since with regard to a gored ox it is stated: “and the dead animal shall be his,” and the Sages derived from here that the injured party’s owner must deal with the carcass. If its value decreases, the injured party bears the loss. But with regard to an unaccustomed ox, Rabbi Yehuda holds that the loss in value is divided equally, half upon the one who caused the damage and half upon the injured party. It follows that the law of an unaccustomed ox is more stringent than that of a gored ox.

And if you would say: This is also so,

indeed, the law of an unaccustomed ox is more stringent than that of a gored ox.

For indeed, we find elsewhere that there is a stringency of an unaccustomed ox over a gored ox:

As we learned in the Mishna, Rabbi Yehuda says:

If one properly locked his ox inside, but it went out and caused damage [damage by goring], if the ox was

unaccustomed,

its owner

is liable

for the damage it caused,

but

if it was

a gored ox,

its owner

is exempt.

The Gemara rejects this: This is not proof, since

say that you have heard Rabbi Yehuda

say that an unaccustomed ox is more stringent than a gored ox only

with regard to

liabilities concerning

guarding,

for one must guard an unaccustomed ox more carefully than a gored ox, because

the verses are written

in that manner. This is what the verses indicate: with regard to a gored ox it is stated, “and he did not guard it,” implying that if he guarded it even with an inferior level of guarding, he is exempt. But this is not stated with regard to an unaccustomed ox, implying that in every case he is liable.

But

with regard to payments, have you heard him say

that the law of an unaccustomed ox should be more stringent than that of a gored ox?!

On the contrary, the Gemara brings proof that Rabbi Yehuda himself is more lenient in the payment laws of an unaccustomed ox than in those of a gored ox.

And it was taught in a baraita, Rabbi Yehuda says: It could be

said that

an ox

unaccustomed

worth one maneh,

one hundred zuz, which is twenty-five sela,

gored an ox

that was

worth

only

five sela, and the carcass

of the injured ox

was worth one sela,

then

this

injured party [whose ox had been worth only five sela]

takes half of the living animal,

twelve and a half sela,

and

also

half of the dead animal,

two sela. That is, for damage of four sela, he receives fourteen and a half sela.

And this

is the one who caused the damage; he

takes half of the living animal,

the remaining twelve and a half sela,

and

also

half of the dead animal,

two sela. It follows that for the four sela of damage caused by his ox, he pays fourteen and a half sela.

You have said:

It is not reasonable to say this

, and

the proof is

that

with regard to

a gored ox, why does the Torah distinguish it,

for what purpose was the distinction between an unaccustomed ox and a gored ox stated? Is it

to make its law more stringent [with regard to

the gored ox]

or to make its law more lenient? It must be to make its law more stringent, and

if so, one may make an a-fortiori inference:

Just as

a

gored ox pays only for the damage it caused

and no more,

an unaccustomed ox, whose law is more lenient, surely

should not pay more than the damage it caused.

It is therefore clear from Rabbi Yehuda’s own words that with regard to payments, a gored ox is more stringent than an unaccustomed ox. This is difficult for Rava, who explains Rabbi Yehuda’s view as holding that the law of an unaccustomed ox is more stringent than that of a gored ox.

Rather, Rabbi Yohanan said:

Everyone agrees that if the carcass decreased in value, the injured party bears the entire loss in value, and the one who caused the damage is not obligated to compensate him for what he lost.

The dispute between Rabbi Yehuda and Rabbi Meir concerns the law of

“an increase in the carcass’s value,”

namely, if the carcass increased in value between the time of the damage and the time of collection, who benefits from that increase.

And this is the practical difference

between them: One master,

Rabbi Meir,

holds

that the one who caused the damage has no ownership of the carcass at all. Therefore, the law of an increase in the carcass’s value is the same as the law of a decrease in its value, and both

belong to the injured party.

Thus, the one who caused the damage pays the amount for which he was liable at the time of the goring, while the injured party gains the increase in value.

And the other master,

Rabbi Yehuda,

holds: Half;

the increase in value is divided between the one who caused the damage and the injured party.

For example, if an ox worth two hundred zuz gored an ox worth two hundred zuz, and at the time of the damage the carcass was worth fifty zuz, each one takes half of the living animal and half of the dead animal, namely one hundred twenty-five zuz, and the one who caused the damage gives his share of the carcass plus seventy-five zuz. If, before the division, the carcass increased in value and became worth one hundred zuz—that is, it increased by fifty zuz beyond its original value—they divide those fifty zuz, and the one who caused the damage can pay part of the debt with the additional twenty-five zuz. It follows that he pays only fifty zuz.

Rabbi Yohanan added,

this is what troubled Rabbi Yehuda: According to this explanation, since Rabbi Yehuda holds that the one who caused the damage takes half of the increase in value, his statement can explain what troubled Rabbi Yehuda elsewhere.

Now that you have said that the Merciful One took pity on the one who caused the damage, so that he takes

half

of the increase in value, and likewise does not suffer any loss from a decrease in value, there is room to raise the following question.

And this was brought in a baraita in accordance with Rabbi Yehuda:

It could be

said that

an ox worth five

sela [twenty zuz]

gored an ox worth one maneh,

one hundred zuz, which is twenty-five sela,

and the carcass was worth fifty zuz [twelve and a half sela]. It follows that the ox caused damage to an ox worth five times as much as itself, while what remained of the injured ox was worth more than twice the value of the damaging ox.

и получается, что бык причинил вред быку, стоившему в пять раз больше него, а от потерпевшего быка осталась сумма, более чем вдвое превышающая стоимость причинившего вред быка.

Is it possible to say that

this

one who caused the damage, whose ox was worth five sela, twenty zuz,

takes

the

half of the living animal

that had been worth one hundred zuz and of which fifty remained, half of which is twenty-five zuz [six and a quarter sela],

and

also

half of the dead animal,

worth twenty zuz, half of which is ten zuz [two and a half sela], for a total of sixty zuz [eight and a quarter sela].

And

likewise,

this

injured party

takes half of the living animal and half of the dead animal.

You have said:

It is certainly not reasonable to say this, since

where do we find that one who causes damage benefits, when

if you say that the one who caused the damage takes half of the living animal and half of the dead animal,

this

one, whose ox damaged an ox worth more than his own, would not only pay nothing; he would also

benefit.

The baraita gives another reason why the one who caused the damage does not take half of the living animal and half of the dead animal:

And it says:

The verse states

“He shall surely pay.”

This implies that the

owners

of the damaging ox

pay, and the owners do not take.

The Gemara explains:

What is the purpose of the phrase “and it says”?

Why did the baraita need to bring an additional reason? It is obvious that the owner of the damaging ox cannot profit from his ox’s goring.

Rather, this is the intention of the baraita:

And if you would say that this applies only

when the one who caused the damage does not take a share of half the living animal and half the dead animal

where the injured party suffers a loss,

since his ox was worth much more than the damaging ox, and if the one who caused the damage were to divide with the injured party, the injured party would not only receive no payment; he would also have to share with the one who caused the damage. It truly cannot be that the one who caused the damage benefits at the injured party’s expense.

But where the injured party suffers no loss, such as when an ox worth five sela

twenty zuz

gored an ox worth five sela,

and at the time of the goring the carcass had no value at all, so the one who caused the damage became liable to pay ten zuz,

and

afterward

the carcass

increased in value

and became worth thirty zuz [A0207]]ten zuz more than it had been worth while alive]. It follows that the injured party suffered no loss from his ox’s being gored; on the contrary, the carcass’s value is greater than the value of the living animal.

If so, it might have been possible that from those additional ten zuz the one who caused the damage

would also take a share of the increase

and take five zuz.

For this reason the baraita brought the additional explanation:

“And it says: ‘He shall surely pay; the owners pay, and the owners do not take,”

and the injured party benefits from the increase in the carcass’s value.

It emerges, according to Rabbi Yehuda in accordance with Rabbi Yoḥanan, that there are two laws concerning the appreciation of a carcass: (a) if, after the appreciation, the damager still remains liable to pay, he shares the appreciation with the injured party and deducts it from the amount of the payment; (b) if the appreciation is greater than what the damager was required to pay, he does not take for himself a share in the appreciation.

And the Gemara raises a difficulty, both according to Rava and according to Rabbi Yoḥanan, against Rabbi Yehuda’s very position:

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

Accordingly, if an ox worth fifty dinars [twelve and a half sela] gored an ox worth forty dinars [ten sela], and the carcass is worth twenty dinars [it emerges that the ox was damaged by half its value], according to Rabbi Meir they assess how much the ox actually lost—twenty dinars—and he pays half of it, namely ten.

But according to Rabbi Yehuda, they divide the live half, worth fifty, between them; it emerges that each half is twenty-five. And they also divide the carcass, worth twenty, whose half is ten. Therefore, each one takes thirty-five dinars.

It emerges that the owner of the ox, which damaged only twenty, pays the half of the live animal, which is twenty-five, and must additionally give his share in the carcass, so that he pays thirty-five instead of twenty.

Rav Aḥa bar Taḥlifa said to Rava:

If so,

if Rabbi Yehuda holds that they assess the live animal and the carcass,

we find according to Rabbi Yehuda

a situation in which a

non-accustomed ox pays more than half-damages,

and

how is it possible that it should pay in this manner? Does

the Torah not say, “And they shall sell the live ox and divide its money,”

which implies that the damager pays only half-damages? And the Gemara answers: in this case,

Rabbi Yehuda has

that the division is not of half the live animal and half the carcass; rather, they assess the

depreciation caused by the death

to the injured animal—which in the stated case is twenty dinars—and this amount they

divide from the live animal,

collecting half of it from the live animal.

It emerges that, according to Rabbi Yehuda, there are two types of payments of half-damages: in a case where, after assessing the live animal and the carcass, the payment does not exceed half-damages, they assess half the live animal and half the carcass. But in a case where this assessment causes the injured party to receive more than his share, they assess only the carcass. And the Gemara raises a difficulty:

From where

does Rabbi Yehuda derive that there are two possibilities of assessment?

Perhaps you will say that he learned this

from

what is stated,

“And also the carcass they shall divide,”

as Rabbi Meir expounded.

That

from this very verse

he removed it,

Rabbi Yehuda expounded [it]

“This one takes half the live animal and half the carcass, and this one takes half the live animal and half the carcass.”

And how is it possible to expound from that same verse that they divide the depreciation caused by the death?

And the Gemara explains: the verse indeed comes to teach that they assess the depreciation caused by the death, like Rabbi Meir. However,

if

only for

this

the verse was stated,

the verse should have written, “And the carcass

they shall divide”,

for

what

purpose was

“also

the carcass they shall divide” added?

Infer from it two things:

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

Mishna:

There is

a situation in which a person is

liable

to bear and pay

for

an act

of damage and the like that his

ox performed,

because he did not guard it properly.

And

if he himself performed that action, he would be

exempt for his own act.

And conversely, it is possible that the person will be

exempt

from bearing and paying

for his ox’s act, and

if he himself performed that same action, he would be

liable for his own act.

And the Mishna specifies: exempt for the act of his ox and liable for his own act—

how:

His ox that shamed

a person by injuring him—its owner is

exempt

from payments for humiliation,

as we hold that “when a man gives a blemish to his fellow,” and not an ox to his fellow.

And

if

he,

the person who damaged by himself,

shamed

his fellow,

, he is liable

for payment of his humiliation.

His ox that 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, [and see in the note what “exempt” and “liable” mean] and the slave goes free.

Liable for the act of his ox and exempt for his own act—how:

His ox that injured his father and his mother

of its owner,

the son of the ox’s owner is

liable

for payment of their damages.

And

if

he wounded his father and mother,

and made a wound in them,

he is exempt

from paying,

because he becomes liable for his life.

His ox that ignited another person's stack

of grain

on Shabbat.

The owner of the ox

is liable,

and pays half the damage, since this is an unusual act of the ox, and its law is the law of keren, for if it is innocuous, it pays half the damage.

And

if

he

the person himself

is the one who ignited the stack

of his fellow

on Shabbat, he is exempt

from paying,

because

he becomes liable for his life

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

Gemara:

He taught,

that is, he taught

Rabbi Abahu

a beraita

before Rabbi Yohanan:

All those who cause damage,

one who performs on Shabbat a labor that has no benefit whatsoever, but is merely the ruining of an existing thing,

are exempt

from punishment.

For the Torah prohibited performing on Shabbat only labors that contain improvement, because they have the status of a deliberate labor; but one who causes damage does not perform a deliberate labor.

Except for one who wounds,

one who draws blood, who, although he ruins the body of the one wounded, is liable for death.

And

so too,

one who kindles

a stack on Shabbat is liable for death, although he causes damage.

He said to him,

Rabbi Yohanan to Rabbi Abahu:

Go out, teach it outside,

go out and teach this beraita outside the beit-midrash, and not before me!

For this beraita, which obligates

one who wounds and one who kindles

even in a place of damage,

is not a Mishna.

It is a beraita that is not fit to be taught, since according to Rabbi Yohanan all those who cause damage on Shabbat are exempt, including one who wounds and one who kindles.

And if you should say

that it

is a Mishna,

that there is a possibility of teaching it, it must be taught as follows: all those who cause damage are exempt, including one who wounds and one who kindles.

Except for

one who wounds

and draws blood

at

the time when he

needs

the blood to feed it

to his dog,

for although he damages the body of the one wounded, on the other hand he has a benefit from the fact that he has blood for his dog. It follows that he does not cause complete damage, because he has a need for this damage. And so too,

one who kindles

is liable

at

the time when he burns the wood because he

needs its ash,

for although the burning is damage to the wood, he has a need for this damage.

And every damage that contains a benefit is not judged as damage, but as improvement, and he is liable.

But one who draws blood without a need, and likewise one who kindles an ordinary stack, is exempt according to the law of one who causes damage.

And Rabbi Abahu challenges Rabbi Yohanan from that which

we learned

in our Mishna:

His ox that ignited the stack on Shabbat is liable, whereas he who ignited the stack on Shabbat is exempt.

And

the Gemara infers:

It teaches, “he

who ignited the stack

”—analogous to his ox,

similar to his ox that ignited the stack.

It follows that in the same manner of igniting the stack by his ox, if the person does this, he is liable for death and exempt from payments. For if we do not explain it this way, how did the Mishna say, “there is one who is liable for the act of his ox and exempt for the act of himself”? The manner in which the ox ignites is not similar to the manner in which the person ignites.

And necessarily, in the same act for which the ox is liable, he himself is exempt [from payments]. If so, it is explained that it also refers to one who ignites without a need, since

as for his ox, which does not need it,

just as an ox that ignites the stack does not ignite it for a need, since it has no understanding to ignite it for any purpose.