Bava Kamma 40b — 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-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 “

half-damage is property,”

and he cannot admit liability and become exempt, nevertheless the question is difficult:

Let him say to him

the borrower to the lender:

If it had been a tam

which is collected only from its body, I would have

driven it away to a marsh

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

Rather, with what are we dealing here? With a case in which the court acted first and seized it

the court acted first and seized the ox, and his admission is no longer effective, nor is it relevant that he should drive it away to a marsh.

And we ask:

If so,

why do the owners pay half-damage

and not the borrower pay the whole of it!?

But

let him say to him

the lender to the borrower:

You handed my ox over into the hands of one with whom I cannot conduct

a legal dispute

you handed my ox over into the hands of people with whom I cannot quarrel, 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 said to him

the borrower to the lender: And is it so that

had I returned it to you, they would not have taken it from you

is it so that had I returned the ox to you, they would not likewise have seized the ox from you?

And we ask against this:

And let him say to him

the lender to the borrower:

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

to a marsh

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

And we answer:

Because he said to him

the borrower to the lender:

In the end, would they not have been collected from your superior property

is it so that had I returned it to you, the court could not have collected from your superior property!?

And we ask against this:

This is understandable where he has property

this is understandable when the lender has other property from which it is possible to collect, but

where he has no property

but when he has no other property besides the ox,

what is there to say!?

For in this case the lender can claim to the borrower: You handed my ox over into the hands of one with whom I cannot conduct a legal dispute.

And we answer:

Because he said to him

the borrower to the lender:

Just as I am bound to you, so too am I bound to that one

just as I am subject to a lien for you, so too am I subject to a lien for the injured party,

by the teaching of Rabbi Natan!

For it was taught: Rabbi Natan says: From where is it derived concerning one who is owed money by his fellow

Reuven is owed money by Shimon

one hundred dinars, and his fellow is owed money by his fellow

and Shimon is owed money by Levi

from where is it derived that they take from this one

from Levi

and give to that one

to Reuven?

The verse states

in the section of the “oath of deposit,” concerning one who swore falsely about a deposit in his possession or about a debt that he owed, denying that he owed it, and afterward admitted his falsehood: “And they shall confess the sin that they committed, and he shall restore his guilt-offering [that is, the principal] in its entirety, and he shall add its fifth to it

and he shall give it to the one to whom he is liable

to the one to whom he became obligated, Rashi.”

“To the one who lent it to him” was not stated, but rather “to the one to whom he is liable,” and we expound: “To the one whose principal it is,” for asham refers to the principal. We learned in a beraita:

The ox became a muad in the borrower’s house, and he returned it to the owners; the owners pay half-damage, and the borrower is exempt from everything:

The Gemara asks:

And we ask: Behold, the

conclusion —

the ox became a muad in the borrower’s house, and he returned it to the owners, and the owners pay half-damage — implies that

a change of domain changes it

and therefore the owners do not pay half-damage by virtue of the becoming-muad that took place in the borrower’s domain—

whereas

the beginning —

he borrowed it on the assumption that it was a tam, and it was found to be a muad; the owners pay half-damage, and the borrower pays half-damage — implies that

a change of domain does not change it

and therefore, even though the ox is in the borrower’s domain, they pay full damage for its goring, because of the becoming-muad that took place in the owners’ domain—

and the beginning contradicts the conclusion!?

He said

he answered:

Rabbi Yohanan: Break it

break the beraita! That is to say: Indeed, they contradict one another, and necessarily the beginning and the conclusion do not follow one approach, and

the one who

who

taught this

the beginning, that a change of domain does not change it

did not teach this

the conclusion, that a change of domain changes it.

Rabba said

to reconcile the first clause with the latter clause:

From the beginning

it follows that

a change of domain does not change it

and necessarily

the conclusion too

follows that

a change of domain does not change it; and this is the reason for the conclusion

that the becoming-muad in the guardian’s house is not effective to render the owners liable:

Because he said to him

the lender to the borrower:

It is not within your power to make my ox a muad

you do not have the power to make my ox a muad.

Rav Pappa said

to reconcile the beginning with the conclusion by reversing the reasoning:

From the latter clause

it is apparent that it holds that

a change of possession changes its status; the first clause too

holds that

Since the conclusion

it follows that

a change of domain changes it, the beginning too

follows that

a change of domain changes it.

And this is the reason for the beginning

that the becoming-muad in the owners’ house is effective to render him liable for full damage when it is in the borrower’s domain,

because wherever it goes

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

We learned in the Mishna:

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

It was posed to them: Since an ox that kills a person is disqualified from being offered upon the altar, the question arises concerning an arena ox: what that it should be fit for the altar?

as to whether it is

fit for the altar?

Rav said: It is fit

for the altar.

And Shmuel said: It is disqualified

from being offered.

Rav said: It is fit

it is.

And Shmuel said: It is disqualified

it is.

Rav said it is fit

it is, because

the ox is coerced

the ox.

And Shmuel said it is disqualified

it is, because

a transgression was indeed performed through it.

He challenged Shmuel

who holds that it is disqualified for the altar, from that which was taught in a beraita:

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

And we expound: For this reason it says

“from the animals”,

which implies, but not every animal, in order

to exclude

the ox that mates with a woman and the one that was mated by a man, for it is disqualified for the altar.

And therefore it is said,

“from the cattle”

and not all cattle, in order

to exclude the worshipped animal [

an animal that they made into an object of idolatry].

And

“from the flock”

in order

to exclude the designated animal,

which they designated for an idolatrous offering.

And therefore it is said,

“and from the flock” [

the additional vav], in order

to exclude the goring animal

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

Rabbi Shimon said: If

it has already

been said

that a sheep that

mated

is disqualified with regard to the altar,

why is it said

also that a sheep that

gored

is disqualified, when the two are equal in their transgression, for both of them are stoned?

And if

it has already

been said

that a sheep that

gored

is disqualified,

why is it said

that a sheep that

mated

is disqualified? Why did the Torah need two exclusions to exclude these, when one exclusion is sufficient to exclude them, since they are equivalent and both would be excluded by one exclusion!?

And Rabbi Shimon explains:

Because there is

a stringency

in the one that mated which is not in the one that gored, and there is

a stringency

in the one that gored which is not in the one that mated,

as:

With regard to the one that mated, the verse made

the written Torah

treat coercion like volition,

as it explains and proceeds, whether with regard to an offering or with regard to death, whereas

with regard to the one that gored, the verse did not make

the written Torah

treat coercion like volition—

And conversely: The owner of the

goring ox pays ransom,

whereas the owner of the

animal that mated does not pay the ransom,

as it explains below.

Therefore the verse needed

the written Torah

to say: The one that mated

is disqualified,

and another verse needed

another written statement

to say: The one that gored

is disqualified.

And the Gemara proves from the baraitha that an arena ox is fit for the altar:

For

in any event, it teaches

in the baraitha:

“With regard to the one that mated, it made coercion like volition; with regard to the one that gored, it did not make coercion like volition.”

And

with regard to what halakhic matter [

for what matter] did the written Torah not make coercion like volition with regard to the one that gored; is it

not with regard to an offering!?

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

And we reject this: That which they said in the baraitha, that with regard to the one that gored the written Torah did not make coercion like volition,

not

with regard to an offering did they say it, but

with

regard

to execution [

death by the court], for an ox that gores under coercion is not liable to death, as explained in our Mishna concerning the arena ox.

And the Gemara supports this explanation:

It is also logically evident

in understanding the baraitha that with regard to death the written Torah distinguished between coercion and volition, and not with regard to fitness for an offering,

for if you say: With regard to an offering

is what they said—

If so, how is it possible to say:

“With regard to the one that gored, it did not make

the written Torah

coercion like volition”!?

But

its coercion is not written [

the one that gored under coercion is not stated in the verse that disqualifies it for an offering],

and its volition is not written;

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

Rather, is it not necessarily that

with regard

to execution

is what they said, that the written Torah distinguished, for the Torah said: “when it will gore,” and not that others cause it to gore.

The Master said

in the baraitha mentioned above:

“The one that gored pays the ransom; the one that mated does not pay the ransom”:

And we raise an objection to it: But

what are the circumstances,

in what case does the baraitha say that the one that mated is not liable for ransom,

if you say

in a case

where it mated her [

the animal had intercourse with the woman]

and killed her [

the final he is elided], it is impossible to say this, for certainly its owner is liable for ransom, as:

What difference is there if it killed her [

the woman]

with its horn,

for in that case the Torah said that its owner should pay ransom,

and

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

But if you say

that the owners are not liable for ransom in a case

where it mated with her but did not kill her;

even so, it is impossible to say this, for this is not a leniency with regard to the one that mated, since:

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

because it did not kill her], and the ransom is not for the transgression of the ox, but because a person was killed, and this is not applicable when a woman was mated with.

He said

Rabbi Abaye explained:

In fact

in a case

where it mated with her but did not kill her

through the mating itself, but

they brought the one who was mated with to the court and killed her [

they brought the one who was mated with to the court and killed her], for she too is liable to death.