Bava Kamma 39b (לט:) — the Talmud in English

And the Gemara explains the reason for their dispute:

Rabbi Yoḥanan said: From the orphans’ superior property—

and because

if you say

that the injured party is to be compensated

from the guardian’s superior property—

the guardians will refrain and will not act:

the court will refrain from appointing a guardian, as people will refuse to accept appointment as guardians.

Rabbi Yosei bar Ḥanina said: From the guardian’s superior property, and they return

the guardians

and collect from the orphans when they grow up

the guardians collect from the orphans’ property what they paid, once the orphans grow up. Consequently, there is no longer concern that people will refrain from accepting appointment as guardians.

The Gemara further explains:

And

this ruling—whether

guardians are appointed for them for an innocuous ox in order to collect from its body—

is subject to a dispute between tanna’im

who disagreed about this matter,

as it was taught:

And

An ox whose owners became deaf, and whose

owners became insane,

or whose owners went

or went

overseas:

guardians are appointed for an innocuous ox

Yehuda ben Nekosa said

in the name of

Sumakhos: It remains in its status as an innocuous ox until testimony is delivered concerning it in the presence of the owners

themselves; and he proceeds to explain his statement.

And the Sages say: Guardians are appointed for them, and testimony is delivered concerning them in the presence of the guardians,

and he proceeds to explain it.

And if the deaf owner subsequently

regains his faculties

after testimony was delivered concerning the ox in the presence of the guardians,

and the insane owner recovers, the minor comes of age, or their owners return from overseas:

deaf person regained his faculties

Yehuda ben Nekosa said in the name of Sumakhos: It returns to its status as an innocuous ox,

and the insane person recovered, and the minor grew up, and its owners came from the overseas country:

until testimony is delivered concerning it in the presence of the owners,

because “a change of authority effects a change in status.”

Rabbi Yosei says: It remains in its presumptive status,

and it remains forewarned as it was.

And the Gemara explains the beraita, showing that tanna’im disputed the ruling that “the court appoints a guardian for them for an innocuous ox in order to collect from its body”:

They said

the members of the academy who said, “It is subject to a dispute between tanna’im”: But

what

They said

does the phrase ‘It remains in its status as an innocuous ox

until testimony is delivered concerning it in the presence of the owners,’”

which Sumakhos says, mean?

If you say

according to its plain meaning,

that the ox is not established as forewarned

the ox

at all

by means of a guardian until testimony is delivered concerning it in the presence of the owners, this cannot be said:

For

as the latter clause teaches: “

When the deaf owner regains his faculties, the insane owner recovers, the minor comes of age, and their owners return from overseas,

it returns to its status as an innocuous ox,”

from the fact that the latter clause teaches: “

by inference, it had been established as forewarned

through the guardian before the minor came of age. For otherwise, it had never left its status as an innocuous ox, such that it would need to return to it. Therefore, it is impossible to explain Sumakhos’s statement in the first clause—“It remains in its status as an innocuous ox”—as meaning that it does not become forewarned through a guardian—

Rather,

it is necessarily the case that even Sumakhos agrees that testimony is delivered in the presence of a guardian in order to establish the ox as forewarned. And

what does ‘It remains in its status as an innocuous ox

mean,” as Sumakhos says before testimony is delivered concerning it in the presence of the owners?

It remains in its state of innocence,

that is,

that

if it caused damage while it was innocuous,

we do not reduce

the payment collected from its body; but if testimony is delivered concerning it in the presence of the guardian, it becomes forewarned and the full amount of the damage is collected—

Apparently,

it is therefore evident that Sumakhos holds:

a guardian is not appointed for an innocuous ox in order to collect from its body,

since that is why it “remains in its state of innocence.”

And

if

the Sages,

who disagree and

say: ‘Guardians are appointed for them, and testimony is delivered concerning them in the presence of the guardians,’

it follows that they mean that it does not remain in its state of innocence.

Apparently,

the Sages hold:

a guardian is appointed for an innocuous ox in order to collect from its body.

a guardian is appointed for an innocuous ox to collect from its body.

It follows that the ruling “a guardian is appointed for an innocuous ox in order to collect from its body” is subject to a dispute between tanna’im!

The Gemara adds and explains the beraita:

And the latter clause—

in which Sumakhos and Rabbi Yosei disputed whether the ox returns to its status as an innocuous ox when the deaf owner regains his faculties, the minor comes of age, the insane owner recovers, or the owners return from overseas—

with regard to what do they disagree

what is the reason for their dispute? “

A change of authority,”

A change of authority,”

the authority that changed for the ox, as the ox left the control of the guardian and entered the control of the owners, effects a change in its status as a forewarned ox. That is, if the forewarning is nullified with regard to the ox, and it requires a new forewarning under the authority under which the ox now finds itself, then

there is a difference between them

between Sumakhos and Rabbi Yosei:

Sumakhos holds: A change of authority

that changed

effects a change

in its status as a forewarned ox, and until the ox is established as forewarned under this authority, it is not forewarned.

And Rabbi Yosei holds: A change of authority

that changed

does not effect a change

in its status as a forewarned ox, and it remains forewarned as it was.

The Sages taught: An ox

belonging to

a deaf-mute, an insane person, or a minor, that gored: Rabbi Yaakov pays half the damage.

a deaf-mute or minor, which gored: Rabbi Yaakov pays half-damage.

The Gemara is perplexed by the wording “Rabbi Yaakov pays half the damage,” which implies that he pays half the damage:

Rabbi Yaakov, what is he doing here

what role does Rabbi Yaakov have here!?

Rather, say

that the beraita should be recited as follows:

Rabbi Yaakov says: He pays half the damage.

Rabbi Yaakov says: He pays half-damage.

And we raise another difficulty:

With regard to what are we dealing

what type of ox are we dealing with!?

If it is

an

innocuous

ox, then

it is obvious

that it pays half the damage, since even an ox

belonging to everyone

and not to a deaf-mute, an insane person, or a minor

also pays only half the damage,

and not the full amount of the damage. And if the beraita comes to teach that “a guardian is appointed for an innocuous ox in order to collect from its body,” it should state: “Rabbi Yaakov obligates.” We would then know that it is dealing with an innocuous ox, and that a guardian is appointed for an innocuous ox, since there is no novelty in this with regard to a forewarned ox!?

As explained by Tosafot, s.v. “Ad meyukke,” and see Rashi as well. And if,

you might say that

it is

an

forewarned

ox about which Rabbi Yaakov made his statement, and that the beraita comes to teach that if it belongs to a deaf-mute, an insane person, or a minor, its owner pays only half the damage, this too cannot be said, because:

If they provided it with protection,

if they guarded it, then

they need not pay anything at all

they should not have had to pay even half the damage!?

And if they did not provide it with protection,

and we are dealing with a case in which they did not guard it, then

they need to pay the entire damage

they should have had to pay the full damage and not merely half!?

If so, in what circumstance did Rabbi Yaakov teach that they pay only half the damage!?

He said

Rava explained:

In fact,

Rabbi Yaakov is dealing

with

an

forewarned

ox belonging to a deaf-mute, an insane person, or a minor. And as for what is difficult for you—that either they should pay nothing if they guarded it, or pay the entire amount if they did not guard it—

I can say to you:

And here, with what are we dealing? With a case in which they provided

the ox

with lesser protection,

meaning that they locked the ox behind a door capable of withstanding only an ordinary wind,

but did not provide it

the ox

with superior protection,

which could withstand even an extraordinary wind. And the ox escaped when an extraordinary wind broke down the door. Therefore, they pay only half the damage, as the Gemara explains:

And Rabbi Yaakov holds in accordance with Rabbi Yehuda, who says: The aspect of innocence

even after the ox has become forewarned

remains in its place,

meaning that he pays the half of the damage according to the stringencies and leniencies applicable to an innocuous ox—

And he also holds

Rabbi Yaakov further

in accordance with Rabbi Yehuda, who says: A forewarned ox requires only lesser protection

unlike an innocuous ox, which requires superior protection. However, since “the aspect of innocence remains in its place,” lesser protection exempts him only from half the damage; but he pays half the damage because of the aspect of innocence that remains in it. This is the half-damage for which Rabbi Yaakov obligates him, and this is his novel teaching. Therefore, he did not simply say: “Rabbi Yaakov obligates.”

And if you say: Since he pays on account of the aspect of innocence, how can he pay through a guardian? I can say to you:

And he holds

Rabbi Yaakov

in accordance with the Rabbis, who say: A guardian is appointed for an innocuous ox—

and for the aspect of innocence that remains in a forewarned ox—

in order to collect from its body.

And he holds

Abaye said

to Rava:

And

is it so that

they do not disagree

about the ruling concerning an ox belonging to a deaf-mute, an insane person, or a minor, and, as you say, they follow the same approach!?

But it was taught in a beraita: An ox belonging to a deaf-mute, an insane person, or a minor, that gored, Rabbi Yehuda obligates

the payment of the

full damage, and Rabbi Yaakov says: He pays only half the damage,

so they evidently disagree about this ruling!?

Rabba bar Ulla said:

Indeed, they do not disagree. Rather,

Rabbi Yaakov explained what Rabbi Yehuda obligates,

meaning that even according to Rabbi Yehuda he pays only half the damage, and Rabbi Yaakov came to explain his statement by saying that he pays only half the damage.

And the Gemara explains:

And according to Abaye, who says that they disagree,

Rabbi Yaakov and Rabbi Yehuda,

about what do they disagree?

That is, in what circumstance do they disagree, and what is the reason for their dispute?

He can say to you

Abaye, explaining the two baraitot:

Here, with what are we dealing? With a forewarned ox that was not guarded at all

it was not guarded at all, not even with the lesser protection required for a forewarned ox. Therefore, Rabbi Yehuda obligates him to pay the full damage, since he also failed to provide the appropriate protection for the aspect of forewarning in the ox. But

Rabbi Yaakov,

who disagrees,

holds in accordance with Rabbi Yehuda in one matter, but disagrees with him

in one matter

he agrees with Rabbi Yehuda regarding one matter, but disagrees with him regarding a second matter—

And we explain:

He holds

Rabbi Yaakov

in accordance with Rabbi Yehuda in one matter:

He holds

That

if

Rabbi Yehuda holds

generally that

the aspect of innocence remains in its place,

it follows that his obligation to pay the half-damage attributable to the aspect of innocence depends on the ruling that “a guardian is appointed for an innocuous ox in order to collect from its body.”

But he disagrees

Rabbi Yaakov

with him

Rabbi Yehuda

in one matter:

as Rabbi Yehuda in one matter:

For if Rabbi Yehuda—

who holds that he pays the full damage—

holds

necessarily

that a guardian is appointed for them for an innocuous ox in order to collect from its body,

and therefore he holds that the payment of the full damage includes within it half the damage collected from its body on account of the aspect of innocence.

But Rabbi Yaakov—

who holds that he pays only half the damage—

holds

that

a guardian is not appointed

for an innocuous ox in order to collect from its body,

and

therefore

he pays only half of the forewarning-related liability

he pays only the half of the damage attributable to the aspect of forewarning.

He said

Rab Aḥa bar Abaye challenged

Ravina:

he pays only half of the forewarned aspect

Granted, according to Abaye, who says that they disagree

Rabbi Yaakov and Rabbi Yehuda as to “whether a guardian is appointed for an innocuous ox in order to collect from its body,” and according to Rabbi Yaakov, “a guardian is not appointed,”

it is well

that he explains the first beraita as referring to a forewarned ox, since it cannot be explained as referring to an innocuous ox, because according to Rabbi Yaakov “a guardian is not appointed for an innocuous ox in order to collect from its body”!

But according to Rava, who says that they do not disagree

Rabbi Yaakov and Rabbi Yehuda regarding the law of “a guardian is appointed”—and, on the contrary, everyone agrees that “a guardian is appointed for an innocuous ox in order to collect from its body”—if so,

rather than establishing it

Rava’s explanation of Rabbi Yaakov’s statement—that he obligates half the damage—

as referring to a forewarned ox,

for example, where they provided it with lesser protection, and therefore he pays only the half of the damage attributable to the aspect of innocence—

let us establish it as referring to an innocuous ox,

he should have explained his statement as referring to an innocuous ox, for which he pays half the damage, in one of two ways: