Bava Kamma 40a (מ.) — the Talmud in English

If according to Rabbi Yehuda:

That is, since Rabbi Yaakov holds in accordance with Rabbi Yehuda, who maintains that an innocuous ox does not suffice with lesser safeguarding, we shall interpret Rabbi Yaakov’s statement as referring to a case where

he provided it with lesser safeguarding but did not provide it with superior safeguarding

[they safeguarded it with lesser safeguarding but did not safeguard it with superior safeguarding], and he pays as an ordinary innocuous ox does—

If according to Rabbi Eliezer ben Yaakov:

That is, if Rabbi Yaakov holds in accordance with Rabbi Eliezer ben Yaakov, who maintains that even an innocuous ox suffices with lesser safeguarding, we shall interpret Rabbi Yaakov’s statement as referring to a case where

he did not provide it with any safeguarding at all

[they did not safeguard it at all], and therefore he pays half the damages.

As it was taught in a beraita: Rabbi Eliezer ben Yaakov says: Both an innocuous ox and an established ox, if they safeguarded them with lesser safeguarding, are exempt.

And lest you say: If he is discussing an innocuous ox, why did he say, “He pays half the damages”? He should have said, “Rabbi Yaakov obligates”! Do not raise this difficulty. He said “he pays half the damages” in order to teach us that the case under discussion is one involving an innocuous ox,

and Rabbi Yaakov teaches us that a guardian is appointed for an innocuous ox in order to collect from its body.

He said to him:

Ravina replied to Rav Aḥa bar Abba,

This is what he is saying: One statement containing two rationales!

That is, Rava explained the matter in this way so that two laws would be understood from Rabbi Yaakov’s single statement. For according to Rava’s interpretation, Rabbi Yaakov stated one law, and we learn two halakhot from his words.

For we learn from his words that Rabbi Yaakov and Rabbi Yehuda agree concerning the law that a guardian is appointed for an innocuous ox in order to collect from its body. They also agree that the aspect of innocuousness remains in its place, and that an established ox suffices with lesser safeguarding, in accordance with Rabbi Yehuda.

Ravina said

in accordance with Abaye: Rabbi Yaakov and Rabbi Yehuda in the beraita disagree concerning the law, but he interprets their disagreement differently:

Authority

[a change made in the ownership of the ox]—does it

alter

the law of its having become established? That is the point of

difference

[between Rabbi Yaakov and Rabbi Yehuda].

And what case are we discussing here? A case

where

the ox was

an established ox, and the deaf-mute became competent, the mentally incompetent became competent, and the minor came of age.

Rabbi Yehuda holds: It remains in its presumptive status:

A change of authority does not alter its established status. This is what we learned: “With regard to an ox belonging to a deaf-mute, a mentally incompetent person, or a minor that gored, Rabbi Yehuda obligates.” That is, he obligates him in all that he had been obligated until then.

Whereas

Rabbi Yaakov holds: Authority alters the law.

This is what we learned: “And Rabbi Yaakov says: He pays half the damages.”

The Sages taught:

a. An established ox that caused damage pays the value of the damage from the superior-quality property of its owner.

b. An ox established as one that kills people, which killed a person: Its owner pays kofer. As it is stated [Exodus 21:29]: “But if the ox was a goring ox from yesterday and the day before yesterday, and its owner was warned but did not guard it, and it killed a man or a woman, the ox shall be stoned, and its owner shall also be put to death [by Heaven]. If [this is an expression of obligation] a ransom shall be imposed upon him, and he shall give the ransom for his life, according to whatever is imposed upon him [by the court].”

And our sugya explains what the amount of the kofer is and why it is paid.

Guardians

whose established ox caused damage while in their possession

pay from the superior-quality property,

and the amoraim previously disagreed whether they pay from their own superior-quality property or from the superior-quality property of the orphans.

But they do not pay kofer,

if the ox in their care killed a person, as the Gemara proceeds to explain the reason.

And we explain:

Who is the tanna

who is the tanna of the beraita that holds that the

kofer

[ransom] that the owners pay when their ox killed a person is for the sake of

atonement

for the owners, to atone for themselves, since they are liable to death at the hand of Heaven, as it is stated: “And its owner shall also be put to death”;

and

therefore the guardians do not pay kofer, since

orphans—

who are minors—

are not subject to atonement.

Rav Ḥisda said:

The beraita is in accordance with the view of

Rabbi Yishmael, son of Rabbi Yoḥanan ben Beroka,

who holds: “Kofer is atonement.”

As it was taught:

It is written: “If a ransom shall be imposed upon him [the owners of the ox that killed a person],

and he shall give the ransom for his life,”

and the tanna’im disagree concerning how much he pays:

According to the Sages,

the value of the injured party,

he pays the value of the deceased victim.

Rabbi Yishmael, son of Rabbi Yoḥanan ben Beroka, says: The value of the damager.

The owner of the ox pays the value of his own life.

But

is it not

the case that

they disagree concerning this:

The Sages hold that kofer

which the owners pay

is monetary compensation,

because the ox damaged this person’s body, and the owner became liable to his heirs for the value of the deceased, and therefore he pays the value of the victim.

And

whereas

Rabbi Yishmael, son of Rabbi Yoḥanan ben Beroka, holds

that

kofer is atonement,

and since it comes to atone for himself, he gives the value of his own life.

It is thus clear that Rabbi Yishmael, son of Rabbi Yoḥanan ben Beroka, holds that kofer is atonement, and the tanna of the beraita, who exempts guardians from paying kofer, follows his view.

Rav Pappa said: No:

It is not as you assume—that according to the first tanna, kofer is not for atonement, and therefore the tanna of the beraita must follow Rabbi Yishmael.

Rather,

everyone agrees that kofer is atonement,

and according to everyone the guardians do not pay, even according to the Sages.

And here—

in the beraita, where the tanna’im disagree whether he pays the value of the damager or the value of the victim—

they disagree concerning this:

The Sages hold

that the measure of the damager’s atonement

is assessed according to the victim,

since he achieves atonement by paying the value of the victim.

And Rabbi Yishmael, son of Rabbi Yoḥanan ben Beroka, holds

that the measure of the damager’s atonement

is assessed according to the damager

himself,

is assessed,

since he comes to atone for himself.

The Gemara explains the rationale for their disagreement:

What is the reason of the Sages?

Surely Rabbi Yishmael’s position appears more reasonable: Since kofer is atonement, he should give the value of his own life!?

It is because the expression

“imposition”

is stated as

“shall be imposed”

upon him,

below

with regard to kofer.

And

the expression

“imposition”

“he shall impose”

above

with regard to a man who strikes a pregnant woman and her children emerge, as it is written [Exodus 21:22]: “And when men fight and they push a pregnant woman and her children emerge, but there is no fatality [to the woman], he shall surely be punished, as the husband of the woman shall impose upon him, and he shall give it through the judges.”

Just as there

[above]

the victim

is assessed, according to the value of the damaged fetuses that the husband imposes upon him,

so too here,

with regard to kofer,

the victim

is assessed.

And Rabbi Yishmael, son of Rabbi Yoḥanan ben Beroka, holds:

“And he shall give the ransom for

his life,”

it is written, and this implies according to the value of the life of the payer.

And the Sages

can say to you:

No,

indeed, “the ransom for

his life”

is written; however, when the amount is assessed, it is assessed according to the victim.

For the verse does not say that he must give according to the value of his life, but that he must give [whatever amount he gives] in order to redeem his life from death at the hand of Heaven. Thus, on the basis of the gezerah shavah, we can say that the amount of the payment is equivalent to the value of the victim.

The Gemara relates that

Rava praised Rav Aḥa bar Yaakov to Rav Naḥman, saying that he was a great man

[Rava praised Rav Aḥa bar Yaakov before Rav Naḥman, saying that he was a great man].

He said to him:

Rav Naḥman said to Rava:

When

Rav Aḥa bar Yaakov

comes before you, bring him to me

[to me].

When he came before him, he said to him: Ask me something.

When Rav Aḥa bar Yaakov came to Rav Naḥman, Rav Aḥa said to him: Ask me some matter of halakha.

He asked him

Rav Naḥman asked Rav Aḥa:

An ox

that is

owned by two partners

and killed a person—

how do

its joint owners

pay the kofer!?

For if you say

this one pays a kofer and that one pays a kofer,

that each partner pays a full kofer, this cannot be said, because

one kofer

is what

the Merciful One stated, and not two kofers.

Lest you say:

this one

[the first partner]

pays half a kofer, and that one

[the second partner]

pays half a kofer,

this too cannot be said, because

the Merciful One stated a full kofer, and not half a kofer.

If so, how will they pay the kofer!?

While he was sitting,

while Rav Aḥa was sitting

and considering it

[the first question],

he said to him

Rav Naḥman said to Rav Aḥa:

We learned

in tractate Arakhin 21a:

Those liable for valuations

[one who says, “My valuation,” or “The valuation of so-and-so is upon me,” meaning that he pays to the Temple treasury the amount fixed in the Torah according to the age and sex of the person being valued], who do not wish to pay their debt to the Temple treasury—

the court takes collateral from them.

But

those liable for sin-offerings and guilt-offerings,

which are brought to atone for a sin,

the court does not take collateral from them,

because ultimately he will bring the offering, even if at present he says that he does not desire atonement.

And Rav Naḥman was uncertain:

What is the law concerning those liable for kofers?

Does the court take collateral from them?

The sides of his uncertainty are as follows: Should we say:

Since it is atonement

[in accordance with the view that “kofer is atonement”],

it is comparable to a sin-offering and a guilt-offering,

and

it is an especially grave matter for him, and there is no need to take collateral from him

[it is severe in his eyes, and there is no need to take collateral from him], since ultimately he will bring it on his own?

Or perhaps: Since he must give it to another, it is monetary property

[since he must give the money of atonement to another person]

and it is not given to the Most High,

it is not especially grave for him, and the court must take collateral from him

[if so, it is not sufficiently grave in his eyes, and the court must take collateral from him]—

Alternatively,

one can state another rationale for not taking collateral from him:

Since he did not sin, but it was his property that caused the damage, the matter is not especially grave for him, and the court must take collateral from him

[since he himself was not the damager, but his property caused the damage, the matter is not so grave for him, and the court must take collateral from him].

He said to him

Rav Aḥa said to Rav Naḥman:

Leave me; I have been silenced by the first question

[leave me, for I have already been left speechless by your first question].

One who borrows an ox is liable for safeguarding it against damage and for paying damages to the victim,

And if it was an innocuous ox, the victim is paid from the body of the ox, which belongs to the owners, and the borrower pays the owners for their loss.

The Sages taught: One who borrowed

an ox

on the presumption

that the ox was

tam

and if it caused damage, he collects only half-damages, from the body of the ox, and

it was found

that the ox had been

mu'ad,

and it pays full damages, from the superior-quality property: then the

owners pay half-damages, and

the

borrower pays half-damages,

the amount he would have paid had the ox in fact been tam. This will be explained further in the course of the sugya. If the ox was tam and

it was rendered mu'ad in the borrower’s possession, and he returned it

the borrower

to the owners:

The owners pay half-damages

only, because “a change of possession changes the status,”

and

if the

borrower would be exempt from anything,

since he returned it and was freed from his payments.

The master said: One borrowed it on the presumption that it was tam, and it was found to be mu'ad; the owners pay half-damages, and the borrower half-damages:

And we raise a difficulty against this:

But why

does the borrower pay even half-damages?

Let him say to him

the borrower should say to the owners: “Pay all of its damages, because I

borrowed an ox, not a predatory lion

—I borrowed a tam, not a mu'ad”!

He said

in explanation:

Rav said: Here, with what are we dealing? With a case where he recognized

it

the borrower recognized

that it was an ox prone to goring,

but he did not know that it had already been rendered mu'ad in court.

The Gemara still asks:

And let him say to him

the borrower should say to the owners: “

I borrowed a tam, not a mu'ad

—I borrowed a tam, not a mu'ad”!?

And we answer:

Because he said to him

the owners said to the borrower: “After all,

in the final analysis,

even

if it had been tam, half-damages

at least

you would have had to pay

—even if the ox had been tam, you would have had to pay half-damages—

so now too, go and pay half-damages

—now as well, go and pay half-damages.”

The Gemara still asks:

And let him say to him

the borrower should say to the lender:

If it were tam,

if the ox had been

he would have been paid from its body,

since it belongs to you, and I would not have had to take money out of my own pocket!?

And we answer:

Because the lender said to him

the lender said to the borrower: “After all,

in the final analysis—

even if it had been tam—would

you not have had to pay me for the ox

—would you not have had to pay me for the loss of the ox?”

The Gemara still asks:

And let him say to him

the borrower should say to the lender: