Bava Kamma 39b — the Talmud in English

And the Gemara explains the reason for their dispute:

Rabbi Yohanan said: From the property of orphans

, and because

if you say

that the injured party is compensated

from the property of the guardian

(precise page location)

they will refrain and will not undertake it

as guardians [the court will refrain from appointing a guardian], because people will refuse to be appointed as guardians.

Rabbi Yosei bar Hanina said: From the property of the guardian, and the guardians return

the payment and

collect from the orphans when they grow up

[the guardians collect from the orphans’ property what they paid, when the orphans grow up], and there is no longer concern that people will refrain from being appointed as guardians.

The Gemara further explains:

And

this law—whether

the court appoints trustees for them in the case of a non-accustomed ox, in order to collect from its body

is subject to a dispute between the Sages

who disagreed about this matter,

as it was taught in a tannaitic source:

And

this law, whether

[or became mentally incompetent]

and whose owners went

[or went]

overseas:

guardians are appointed for an innocuous ox

to collect from its body, is a matter of dispute between tannaim who disputed the matter, as it was taught: An ox whose owners became deaf, and whose owners became insane [or became insane], and whose owners went [or went] to the overseas country: Yehuda ben Nekosa said

[in the name of]

of Sumakhos: It remains in its innocuous state until they testify concerning it in the presence of the owners themselves

and he proceeds to explain his words.

And the Sages say: Guardians are appointed for them, and they testify concerning them in the presence of the guardians

, and he proceeds to explain it.

And if the

regains his faculties

after testimony was given about the ox in the presence of the trustees,

and the mentally incompetent person recovers, the minor comes of age, and the owners return from overseas:

deaf person regained his faculties

after they had testified concerning it in the presence of the guardians,

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

Yehuda ben Nekosa said in the name of Sumakhos: It returned to its innocuous state, until they testify concerning it in the presence of the owners,

and because “a change of authority changes [its status].”

Rabbi Yosei says: It remains in its presumptive status,

and it remains forewarned as it had been.

And the Gemara explains the beraita, and it becomes clear that tannaim disputed the law: “The court appoints a guardian for them for an innocuous ox to collect from its body”:

They said

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

what does Sumakhos

They said

the members of the academy who said “it is a matter of dispute between tannaim”: But what is the meaning of “ it remains in its innocuous state

until they testify concerning it in the presence of the owners,”

which Sumakhos says!?

If you say

according to its plain meaning,

that it is not made forewarned

the ox

at all

through a guardian until they testify concerning it in the presence of the owners, this cannot be said:

For

since the latter clause teaches: “

The deaf owner regains his faculties, the mentally incompetent person recovers, the minor comes of age, and the owners return from overseas;

it returns to its non-accustomed status,”

from the fact that the latter clause teaches: “

the deaf person regained his faculties, the insane person recovered, the minor grew up, and its owners came from the overseas country, it returned to its innocuous state,” by inference, it had become forewarned

through the guardian before the minor grew up, for otherwise it would never have left its innocuous state such that it would need to return to it; and if so, it is impossible to explain Sumakhos’s words in the first clause: “It remains in its innocuous state,” as meaning that it is not made forewarned through a guardian—

Rather, necessarily, even Sumakhos agrees that they testify in the presence of a guardian in order to make it forewarned, and

what is the meaning of “

it remains in its innocuous state”—which Sumakhos said before they testified concerning it in the presence of the owners— it remains in its innocence,

mean,” as Sumakhos said before testimony was given about it in the presence of the owners?

It remains in its ordinary, non-accustomed state

and that is:

if

it caused damage while it was innocuous,

we do not diminish it

to collect from its body; but if they testify concerning it in the presence of the guardian, it becomes forewarned and they collect the damage—

Therefore,

it is proven that Sumakhos holds:

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

for that reason “it remains in its innocence.”

And

if

the Sages

indeed disagree and

say: Guardians are appointed for them and they testify concerning them in the presence of a guardian,

it follows that they come to say that it does not remain in its innocence,

therefore

the Sages hold:

the court appoints a trustee for a non-accustomed ox in order to collect from its body.

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

And it follows that the law “a guardian is appointed for an innocuous ox to collect from its body” is a dispute between tannaim!

The Gemara further adds and explains the beraita:

And the latter clause—

in which Sumakhos and Rabbi Yosei disputed whether the ox returned to its innocuous state when the deaf person regained his faculties, or the minor grew up, or the insane person recovered, and when its owners returned from the overseas country—

in what do they dispute

[what is the reason for their dispute]? “

A change of authority,”

A change of authority changes its status”:

the authority that changed for it, when the ox left the authority of the guardian and entered the authority of the owners, changes its forewarning; that is, if the forewarning was nullified from the ox, and another forewarning is required in the authority in which the ox now is,

this is the difference between them

[between Sumakhos and Rabbi Yosei]:

Sumakhos holds: An authority

that changed

changes

its forewarning, and until the ox is made forewarned in this authority, it is not forewarned.

And Rabbi Yosei holds: An authority

that changed

does not change

its forewarning, and it remains forewarned as it had been.

The Sages taught: An ox

of

a deaf person, a mentally incompetent 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 astonished by the wording “Rabbi Yaakov pays half-damage,” which implies that he pays half-damage:

Rabbi Yaakov, what is his role here

[what is Rabbi Yaakov doing here]!?

Rather, say

that you should read the beraita thus:

Rabbi Yaakov says: He pays half the damage.

Rabbi Yaakov says: He pays half-damage.

And we raise another difficulty:

With what are we dealing

[with which ox are we dealing]!?

If it is

an

innocuous

ox, then

it is obvious

that it pays half-damage, for even an ox

belonging to everyone

[belonging to the entire world, and not to a deaf-mute or minor]

also pays only half-damage

and not full damage; and if it comes to teach us that “a guardian is appointed for an innocuous ox to collect from its body,” let it teach: “Rabbi Yaakov holds him liable,” and we would know that he is dealing with an innocuous ox, and that a guardian is appointed for an innocuous ox, for there is no novelty in this concerning a forewarned ox!?

And if, perhaps you will say that

it is

a

ox that

is forewarned

which Rabbi Yaakov mentioned, and it comes to teach us that if it belongs to a deaf-mute or minor, he pays only half-damage, this too cannot be said, for:

If they provided it with protection,

if they guarded it, then

it does not need to pay at all

[they should not have had to pay even half-damage]!?

And if they did not provide it with protection,

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

he needs to pay the entire damage

[they should have had to pay full damage and not half of it]!?

And if so, in what manner did Rabbi Yaakov innovate that he pays only half-damage!?

He said,

he explained,

Rava: In every case

Rabbi Yaakov is dealing

with

an

forewarned

ox belonging to a deaf-mute or minor, and concerning what troubles you—that he should either pay nothing if they guarded it, or pay everything 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 it

the ox

with inferior protection,

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

but did not provide it

the ox

with superior protection,

capable of withstanding even an extraordinary wind, and the ox escaped when the door was broken by an extraordinary wind, and for this reason he pays only half-damage, as the Gemara explains:

And Rabbi Yaakov holds as Rabbi Yehuda, who says: The aspect of innocence

even after it has become forewarned—

remains in its place,

that is, he pays half the damage with the stringencies and leniencies of an innocuous ox—

And he further holds

Rabbi Yaakov

as Rabbi Yehuda, who says: For a forewarned ox, inferior protection is sufficient

unlike an innocuous ox, which requires superior protection; however, since “the aspect of innocence remains in its place,” the inferior protection exempts it only from half-damage, but it pays half-damage because of the aspect of innocence within it, and this is the half-damage for which Rabbi Yaakov held him liable, and this is his innovation; therefore he did not simply say, “Rabbi Yaakov holds him liable.”

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

And he follows

Rabbi Yaakov

the view of the Sages, who say: The court appoints a trustee for a non-accustomed ox

and for the non-accustomed aspect that remains in an accustomed ox

in order to collect from its body.

And he holds

Rabbi Yaakov as the Rabbis, who say: A guardian is appointed for an innocuous ox and for the aspect of innocence in a forewarned ox— to collect from its body. Abaye said

to Rava:

And

is it that

they do not disagree

Rabbi Yaakov and Rabbi Yehuda concerning the law of an ox belonging to a deaf-mute or minor, and, as you say, they follow one approach!?

But was it not taught: An ox belonging to a deaf-mute or minor, which gored, Rabbi Yehuda holds him liable

for full damage,

and Rabbi Yaakov says: It is half-damage that he pays

—here it is evident that they disputed this law!?

Rabba bar Ulla said:

Indeed, they did not dispute, but

what Rabbi Yehuda holds him liable for, Rabbi Yaakov explained,

that is: Even according to Rabbi Yehuda he pays only half-damage, and Rabbi Yaakov comes to explain his words, saying that he pays only half-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 manner did they dispute, and what is the reason for their dispute?

He can say to you

Abaye, to explain the two beraitot:

Here, with what are we dealing? With a forewarned ox, and he did not guard it at all

[they did not guard it at all], not even with inferior protection as required for a forewarned ox; therefore Rabbi Yehuda holds him liable for full damage, since even regarding the aspect of forewarning within it he did not provide the proper protection, whereas

Rabbi Yaakov

who disagrees

holds as Rabbi Yehuda in one matter, and disagrees with him

in one matter

[he agrees with Rabbi Yehuda in one matter and disagrees with him in a second matter]—

And we explain:

Rabbi Yaakov follows

Rabbi Yaakov

Rabbi Yehuda in one matter:

He holds

If

Rabbi Yehuda

held

in general that

the non-accustomed aspect remains in its place, then it follows that his liability for the half-damage attributable to the non-accustomed aspect depends on the law that “the court appoints a trustee for a non-accustomed ox in order to collect from its body.”

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 Rabbi Yaakov disagrees

Rabbi Yaakov

with him

Rabbi Yehuda

in one matter:

as Rabbi Yehuda in one matter:

For if Rabbi Yehuda holds in general that the aspect of innocence remains in its place, and it follows that his liability for the half-damage attributable to the aspect of innocence depends on the law “a guardian is appointed for an innocuous ox to collect from its body”— And Rabbi Yaakov disagrees with Rabbi Yaakov with him, with Rabbi Yehuda, in one matter: For if Rabbi Yehuda—

who holds that he pays full damage—

holds

necessarily

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

and therefore he holds that he pays full damage, which includes half-damage from its body on account of the aspect of innocence.

And Rabbi Yaakov—

who holds that he pays only half-damage—

holds

that

a guardian is not appointed

for an innocuous ox to collect from its body,

and

therefore

he pays only half of the accustomed-ox liability

[he pays only the half-damage attributable to the ox’s accustomed status].

He said

Rab Aḥa bar Abaye challenged

Ravina:

he pays only half of the forewarned aspect

[he pays only the half-damage attributable to the aspect of forewarning]. He said, Rav Aha bar Abaye raised a difficulty to Ravina: Granted, according to Abaye, who says that they disagree

Rabbi Yaakov and Rabbi Yehuda regarding “whether a guardian is appointed for an innocuous ox 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 dealing with a forewarned ox, for it is impossible to explain it as dealing with an innocuous ox, since according to Rabbi Yaakov “a guardian is not appointed for an innocuous ox to collect from its body”!

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

Rabbi Yaakov and Rabbi Yehuda concerning the law of “a guardian is appointed,” and, on the contrary, according to everyone “a guardian is appointed for an innocuous ox to collect from its body,” then,

rather than establishing it

until Rava explains Rabbi Yaakov’s words—who holds him liable for half-damage—

as dealing with a forewarned ox,

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

let us establish it as dealing with an innocuous ox,

he should have explained his words as referring to an innocuous ox, and that it pays half-damage, in one of two ways: