Bava Kamma 40b (מ:) — the Talmud in English

If it had been a tam, I would have admitted liability and been exempt [if this had been a tam, I would have admitted liability, and they would not have collected from its body], since “half-damages is a fine,” and one who admits liability for a fine is exempt!?

[if this had been an innocuous ox, I would have admitted liability, and they would not have collected from its body], since “half-damage is a fine,” and one who admits liability for a fine is exempt!?

The Gemara adds and asks:

And even according to the one who says

that half-damages is monetary compensation,

and he cannot admit liability and thereby become exempt, nevertheless, the following difficulty remains:

let him say to him,

the borrower to the lender:

If it had been a tam,

for which payment is collected only from its body, I would have

driven it to a marsh [if this had been a tam, I would have driven it to a marsh so that they could not collect from its body]!?

[if this had been an innocuous ox, I would have driven it to a marsh so that they could not collect from its body]!?

Rather, with what are we dealing here? With a case where the court preceded him and seized it [the court preceded him and seized the ox], and his admission is no longer effective, nor is it possible for him to drive it to a marsh.

[the court acted first and seized the ox], and his admission is no longer effective, nor is there any possibility of driving it to a marsh.

And we ask:

If so,

why do the owners pay half-damages,

and not the borrower pay the full amount!?

But

let him say to him,

the lender to the borrower:

You placed my ox in the hands of one with whom I cannot conduct litigation

against him [you placed my ox in the hands of people with whom I cannot contend], namely, the court! You should have guarded the ox so that the court would not seize it in order to collect from it.

[you placed my ox in the hands of people with whom I cannot argue], namely, the court! You should have guarded the ox so that the court would not seize it in order to collect from it.

And we answer:

Because he could say to him,

the borrower to the lender: But

had I returned it to you, would they not have taken it from you as well [had I returned the ox to you, would the court not have seized it from you as well]?

[if I had returned the ox to you, would the court not have seized it from you as well]?

And we challenge this:

But let him say to him,

the lender to the borrower:

Had you returned it to me, I would have driven it

to a marsh [had you returned the ox to me, I would have driven it to a field] so that they would not seize it.

[if you had returned the ox to me, I would have driven it to a field] so that they would not seize it.

And we answer:

Because he could say to him,

the borrower to the lender:

Ultimately, would they not have collected from your superior property [even had I returned it to you, would the court not have been able to collect from your superior property]!?

[even if I had returned it to you, would the court not have been able to collect from your other property]!?

And we challenge this:

That is understandable where he has property [that is understandable when the lender has other property] from which they can collect, but

[that works when the lender has other property] from which the payment can be collected, but

where he has no property [but when he has no property other than the ox],

[but has no other property apart from the ox],

what can be said!?

In such a case, the lender could say to the borrower: You placed my ox in the hands of one with whom I cannot conduct litigation.

And we answer:

Because he could say to him,

the borrower to the lender:

Just as I am subject to you, so too am I subject to that other party [just as I am subject to you, so too am I subject to the injured party],

[just as I am obligated to you, so too I am obligated to the injured party],

by virtue of Rabbi Natan!

As it is taught in a baraita: Rabbi Natan says: From where is it derived that one who is owed money by another [Reuven is owed money by Shimon]

[Reuven is owed money by Shimon]

and that other is owed money by another [Shimon is owed money by Levi],

[Shimon is owed money by Levi],

from where is it derived that they take it from this one [from Levi]

[from Levi]

and give it to that one [to Reuven]?

[to Reuven]?

The verse states, in the passage concerning the oath of deposit, regarding one who falsely swore about a deposit in his possession or about a debt that he owed, denying his obligation, and then admitted his lie: “And they shall confess the sin that they committed, and he shall return his guilt offering [the principal] in its entirety, and he shall add its fifth to it

in the section concerning the oath of deposit, regarding one who falsely swore about a deposit in his possession or about a debt that he owed, denying his obligation, and then admitted his falsehood: “They shall confess the sin that they committed, and he shall return the principal of his guilt, and add its fifth to it”

and give it to the one to whom he is liable [to the one to whom he is indebted, Rashi].” The verse does not say, “to the one who lent it to him,” but rather, “to the one to whom he is liable.” And we expound: “to the one to whom the principal belongs,” for asham refers to the principal.

We learned in a baraita:

We learned in a beraita:

If the ox became a mu'ad in the borrower’s house, and he returned it to the owners, the owners pay half-damages, and the borrower is entirely exempt:

The Gemara asks:

And we ask: The

conclusion—if the ox became a mu'ad in the borrower’s house and he returned it to the owners, the owners pay half-damages—implies that

“the ox was established as a goring ox in the borrower’s possession, and he returned it to the owners, and the owners pay half-damage”—this implies that

a change of possession changes its status,

and therefore the owners do not pay half-damages by virtue of the forewarning that took place while it was in the borrower’s possession—

whereas the

beginning—if he borrowed it under the assumption that it was a tam and it was found to be a mu'ad, the owners pay half-damages and the borrower pays half-damages—implies that

“he borrowed it believing it was innocuous, but it was found to be an established goring ox; the owners pay half-damage, and the borrower pays half-damage”—implies that

a change of possession does not change its status,

and therefore, although the ox is in the borrower’s possession, full damages are paid for its goring, by virtue of the forewarning that took place while it was in the owners’ possession—

So the beginning contradicts the conclusion!?

Rabbi Yoḥanan said

he answered:

Break it apart [break apart the baraita]! That is, indeed, the beginning and the conclusion contradict one another, and necessarily they do not follow a single opinion. And

[break apart the beraita!] That is, they indeed contradict one another, and necessarily the first clause and the latter clause do not follow the same approach.

the one who

who

taught this [the beginning], that a change of possession does not change its status,

[the first clause], that a change of possession does not change its status,

did not teach this [the conclusion], that a change of possession changes its status.

[the latter clause], that a change of possession does change its status.

Rabba said

in order to reconcile the beginning with the conclusion:

From the beginning,

it holds that

a change of possession does not change its status; therefore,

it must be that

the conclusion too

necessarily holds that

a change of possession does not change its status. And this is the reason for the conclusion: The forewarning that took place in the bailee’s possession is not effective to render the owners liable:

that the declaration made while the ox was in the custodian’s possession is not effective to make the owners liable:

Because he could say to him,

the lender to the borrower:

You do not have the power to make my ox a mu'ad [you do not have the power to render my ox a mu'ad].

[you do not have the power to establish my ox as a goring ox].

Rav Pappa said

to reconcile the beginning with the conclusion in the reverse manner:

From the conclusion,

it holds that

a change of possession changes its status; the beginning too

holds that

a change of possession changes its status.

And this is the reason for the beginning: The forewarning that took place in the owners’ possession is effective to render the owners liable for full damages when the ox is in the borrower’s possession,

that the declaration made while the ox was in the owners’ possession is effective to make the owners liable for full damage when the ox is in the borrower’s possession:

because wherever it goes,

the ox,

its owner’s name remains upon it.

We learned in the Mishna:

An arena ox is not liable to be put to death:

the ox there its owner’s name remains upon it.

They raised a dilemma: Since an ox that kills a person is disqualified from being offered upon the altar, the following question arises regarding an arena ox:

Since an ox that kills a person is disqualified from being offered on the altar, the following question arises regarding an arena ox:

What is

it—is it fit

for the altar?

Rav said: It is fit

for the altar.

And Shmuel said: It is disqualified

from the altar.

Rav said: It is fit,

because

the ox was coerced

into doing so.

And Shmuel said: It is disqualified,

because

a transgression was performed through it.

The following baraita raises an objection

to Shmuel, who holds that it is disqualified for the altar:

It is written [Leviticus 1:2]: “When a person brings an offering from you to the Lord, from animals, from cattle or from the flock, you shall bring your offering.”

And we expound: The verse says

“from animals,”

which implies, but not every animal, in order

to exclude

the ox

that copulated

with a woman

and the animal with which a man copulated

which are disqualified for the altar.

And therefore it is stated:

“from the herd”

and not every animal of the herd, in order

to exclude the ne'evad [an animal made into an object of idolatrous worship].

an animal that people made into an object of idolatrous worship].

And

“from the flock”

in order

to exclude the muktzeh,

which was set aside for use as an offering to idolatry.

And therefore it is stated:

“and from the flock”

[the extra conjunction vav], in order

to exclude the goring animal

that gored a person and killed him, as it is disqualified.

Rabbi Shimon said: If

it has already

been stated

that a sheep

that engaged in bestiality

is disqualified with regard to the altar,

why is it stated

also that a sheep

that gored

is disqualified? Are the two not equal in their transgression, since both are stoned?

And if

it has already

been stated

that a sheep

that gored

is disqualified,

why is it stated

that a sheep

that engaged in bestiality

is disqualified? Why did the Torah require two exclusions to exclude these animals? Surely one exclusion would suffice to exclude them both, since they are equivalent and both could be excluded by means of a single exclusion!?

Rabbi Shimon explains:

Because there is

a stringency

in the animal that engaged in bestiality that is absent in the goring animal, and there is

a stringency

in the goring animal that is absent in the animal that engaged in bestiality,

as:

With regard to the animal that engaged in bestiality, Scripture made

the case of

coercion equivalent to intent,

as it will explain below, both with regard to an offering and with regard to execution, whereas

with regard to the goring animal, Scripture did not make

the case of

coercion equivalent to intent—

On the other hand: The owner of a

goring ox pays the ransom,

whereas the owner of the

animal that engaged in bestiality does not pay the ransom,

as it will explain shortly.

Therefore, Scripture needed

to

state: The animal that engaged in bestiality

is disqualified,

and another verse needed

to

state: The goring animal

is disqualified.

The Gemara proves from the beraita that an arena ox is fit for the altar:

For

at least it teaches

in the beraita:

“With regard to the animal that engaged in bestiality, Scripture made coercion equivalent to intent; with regard to the goring animal, it did not make coercion equivalent to intent.”

And

with regard to what halakhic matter

[for what purpose] did Scripture not make coercion equivalent to intent with regard to the goring animal? Is it

not with regard to an offering!?

Thus, an arena ox that gored under coercion is fit for the altar.

And we reject this: The statement in the beraita that, with regard to the goring animal, Scripture did not make coercion equivalent to intent

is not

a statement referring to an offering; rather, it refers

to

the matter of

execution [execution by a court], because a goring animal that gored under coercion is not liable to execution, as explained in our Mishna concerning an arena ox.

execution by a court], because an animal that gored under coercion is not liable to execution, as explained in our Mishna concerning an arena bull.

The Gemara supports this interpretation:

It is indeed reasonable

to understand the beraita as distinguishing, with regard to execution, between coercion and intent, and not with regard to fitness for an offering,

for if you say that it is with regard to an offering

that they stated this—

If so, how can one say:

“With regard to the goring animal, Scripture did not make

the case of

coercion equivalent to intent”!?

But

its coercion is not written

[the goring of the animal under coercion is not stated in the verse that disqualifies it as an offering],

and its intent is not written;

that is, is there a verse that distinguishes between coercion and intent with regard to an offering!?

Rather, no;

it necessarily refers

to execution,

that Scripture made this distinction, since the Torah states: “When it gores,” and not when others cause it to gore.

The Master said

in the beraita mentioned above:

“The goring animal pays the ransom; the animal that engaged in bestiality does not pay the ransom”:

And we raise an objection to this: But

what are the circumstances,

in what case does the beraita state that the animal that engaged in bestiality is not liable to pay the ransom?

If you say

it is a case

where it engaged in bestiality

[the animal had intercourse with the woman]

and killed her

[the woman], this cannot be said, for its owner is certainly liable to pay the ransom, since:

What difference is there whether it killed her

[the woman]

with its horn,

for in that case the Torah stated that its owner must pay the ransom, or

what difference is there whether it killed her through intercourse!?

what difference is there if it killed her through mating!?

But rather,

say that the owners are not liable to pay the ransom in a case

where it engaged in bestiality but did not kill her;

this too cannot be said, because this is not a leniency particular to an animal that engaged in bestiality, since:

The reason that it does not pay the ransom is that it did not kill her

[because it did not kill her], and the ransom is not for the animal’s transgression; rather, it is because a person was killed, and this does not apply when a woman was the object of intercourse.

He said

Abaye explained:

Actually,

it is a case

where it engaged in bestiality but did not kill her

through the intercourse itself; rather,

they brought her before the court and it executed her

[they brought the woman who was the object of intercourse before the court and executed her], for she too is liable to execution.