Bava Kamma 42a (מב.) — the Talmud in English

To a fisherman who pulls fish from the sea

when he finds large ones, he takes them,

when he finds

small ones, he takes them [he finds large fish, so he takes them and places them in his basket; and when he later finds small fish, he also places them in his basket]. So too Rabbi Eliezer: although he had already offered a good answer, nevertheless, when another answer occurred to him, even though it was less good than the second, he stated that one as well.

when he finds large fish, he takes them and places them in his basket, and when he then finds small fish, he also places them in his basket], and so too Rabbi Eliezer: although he had already given a good answer, nevertheless, when another answer arose in his mind, even though it was less good than the second one, he stated that one as well.

Rav Taviumi said in the name of Rava: The statement “

he killed”

he said first; this is analogous

to what?

To a fisherman who pulls fish from the sea: when he finds small ones, he takes them; when he finds large ones, he throws away the small ones and takes the large ones [if he initially finds small fish, he places them in his basket, because perhaps he will not find better ones; and when he subsequently finds large fish, but there is not enough room in his basket for all of them, he throws away the small ones and takes only the large ones]. So too Rabbi Eliezer initially offered a less satisfactory answer, because no better answer than it had occurred to him; and when a better answer occurred to him, he retracted the first one and offered this one.

if he first finds small fish, he places them in his basket, for perhaps he will not find better ones, and when he subsequently finds large fish, and there is not room in his basket for all of them, he throws away the small ones and takes only the large ones], and so too Rabbi Eliezer: at first he stated a less good answer, because no better answer than it had arisen in his mind, and when a better answer arose in his mind, he retracted the first one and gave this one.

a. It is written [Exodus 21:22]: “When men fight and they strike a pregnant woman and her children emerge, and there is no disaster [death], he shall surely be punished [the one who struck her, with monetary payment], as the woman's husband shall impose upon him [namely, the value of the fetuses], and he shall give it through the judges.” And we learn that if there is a disaster, he is not punished; this is because there is an obligation to receive the death penalty, and liability for death exempts one from monetary payment, according to the principle of kam lei bidraba minei.”

This verse can be interpreted in several ways:

The first: “and there shall be no disaster” among the combatants. This implies that if there is a disaster among the combatants—meaning that one intended to kill the other but killed him—he is not liable to pay for the fetuses.

The second: “and there shall be no disaster” to the woman. This implies that if the disaster is to the woman—even if he did not intend to strike her—he is not liable to pay for the fetuses.

b. It is written [Deuteronomy 25:11]: “When men fight together, one man and his brother, and the wife of one approaches to rescue her husband from the hand of the one striking him, and she extends her hand and grasps his private parts [thereby humiliating him]. Then you shall cut off her hand [meaning: she shall pay money]; your eye shall not pity her.”

And the Sages derived from the wording “when men fight” that the Torah made only men liable for payment for humiliation; but oxen that humiliate a person are not liable to pay for humiliation.

It was taught in another beraita

[we learned another beraita]:

It is written in the passage concerning ransom: “And

the owner of the ox shall be clean.”

Rabbi

Yosei HaGelili says:

The verse comes to teach that when an ox gores a woman and her children emerge, the owner of the ox is

clean of

payment of

the value of the fetuses,

because the Torah made only a person liable.

Rabbi Akiva said

to Rabbi Yosei HaGelili: Why did the Torah need to teach that an ox is exempt from payment for the fetuses, when

it

[the verse]

says in the passage concerning payment for the fetuses: “And

“when

men fight,”

so we have already learned:

men

are liable for payment for the fetuses

but not oxen!?

The Gemara explains Rabbi Yosei HaGelili's position, for, ostensibly, one could object:

Rabbi Akiva

said

has argued well [Rabbi Akiva raised a valid objection]!?

[Rabbi Akiva challenged him well]!?

Rav Ulla, son of Rav Idi, said

in resolution: Nevertheless,

it was necessary

for the verse to teach that an ox is exempt from payment for the fetuses through the phrase “and the owner of the ox shall be clean,” because

it might enter your mind to say

that the Torah's statement “men” should be interpreted as follows:

Men

are liable for payment for the fetuses,

but oxen resembling men

are liable for payment for the fetuses. That is:

Just as men

whom the Torah made liable for payment for the fetuses are

forewarned—

since a person is considered forewarned—

so too oxen

whom the Torah excluded from payment for the fetuses are excluded only when they are

forewarned—

that is what it excluded.

And I would say:

In the case of a docile ox,

which does not resemble a person, who is forewarned, it

is liable

for payment for the fetuses.

Therefore,

the Merciful One wrote “

and

the owner of the ox shall be clean,”

to say

that

even a docile ox

is exempt.

Rava

said: It is

“the native on the ground and the stranger in the heavens!”

[Can it be that the native is below, on the earth, while the stranger is high in the heavens?] Is it conceivable that a forewarned ox would be exempt, while a docile ox would be liable!?

Rather, Rava said: It was necessary for the phrase “and the owner of the ox shall be clean,” because

it might enter your mind to say that

the verse excluded “men” and oxen resembling men,

and this is its meaning:

Just as men are forewarned, so too oxen are forewarned,

and I would say that a forewarned ox is exempt from payment for the fetuses,

and it follows by a kal va-chomer that docile oxen are exempt—

Therefore,

the Merciful One again wrote “

and

the owner of the ox shall be clean,”

in order to teach us that

a docile ox is exempt

from payment for the fetuses,

but a forewarned ox is liable

for payment for the fetuses.

That is, the primary exclusion conveyed by “and the owner of the ox shall be clean” does not come to teach that an ox is exempt from payment for the fetuses. Rather, it tells you: only the owner of a docile ox—the case about which the verse speaks, as the verse immediately continues: “And if it was a goring ox”—is clean of payment for the fetuses; but the owner of a forewarned ox is not. Do not say that the Torah excluded men but not forewarned oxen resembling men; the verse teaches us that the owner of a forewarned ox is not clean.

Abaye said to him: If that is so, according to your interpretation that “and the owner of the ox shall be clean” comes to make the forewarned ox liable, and so that we should not exclude it through the word “men,”

according to your words, that “and the owner of the ox is innocent” comes to make the forewarned ox liable, and so that we should not exclude it through “men,”

with regard to humiliation

of a person by oxen,

let us say the same:

Since the Torah says with regard to humiliation, “when

men

fight,” it follows that

men resembling men are liable for humiliation,

just as men

who are

forewarned

are made liable by the verse for humiliation,

so too forewarned oxen

are exempted by the verse,

and it follows by a kal va-chomer that docile oxen are exempt

from humiliation. Therefore,

the Merciful One again wrote “the owner of the ox shall be clean”

in order to teach you that

a docile ox is exempt and a forewarned ox is liable.

And if you would say: It is indeed so

[yes, this is in fact the case].

That cannot be said, because

if so, let the beraita state

as follows: “

The owner of the ox shall be clean.”

Rabbi Yosei HaGelili says:

The verse comes to teach that he is

exempt from payment for the fetuses and from humiliation.

Rather, Abaye and Rava both say

that the Torah needed to exclude payment for the fetuses through “and the owner of the ox shall be clean,” and it was not sufficient to rely on the statement “men,” which implies “but not oxen,” because I would interpret the verse's exclusion of “men” as intended to impose greater liability upon oxen. This is what the verse would mean:

Men,

if

there is no disaster to the woman, shall be punished.

As it says: “and there shall be no disaster [to the woman], he shall surely be punished.” But if

there is a disaster to the woman, they shall not be punished,

as is implied by the verse—

but not oxen.

For even though there is a disaster

to the woman,

they shall be punished,

because this does not entail an obligation for the owner of the ox to receive the death penalty.

Therefore,

again

he returned and

the Merciful One wrote “

and

the owner of the ox shall be clean,”

that he is exempt

from payment for the fetuses.

Rav Adda bar Ahava raised an objection to Abaye and Rava, who interpreted the verse “and there shall be no disaster” to mean that if there is no disaster to the woman, they shall be punished, whereas if there is a disaster to the woman—even though they did not intend to strike her—they shall not be punished:

to Abaye and Rava, who interpreted the verse “but there shall be no disaster” as: if there is no disaster to the woman, they shall be punished; but if there is a disaster to the woman—which they did not intend—they shall not be punished:

Is the matter dependent on

whether there is

a disaster!?

Is it the case that the Torah exempted the one who struck her from monetary payment based only on the occurrence of a disaster, with no distinction between whether the disaster occurred among the combatants, who intended to strike one another, or whether the disaster occurred to the woman, whom he did not intend to strike? In either case, the one who struck her is exempt from monetary payment!

!

But this is not so. Rather,

the matter depends on intention. The Torah did not say “and there shall be no disaster,” implying that if there is a disaster he is not punished, אלא only if there is a disaster to the man whom he intended to strike. But if he struck the woman, whom he did not intend to strike, he is not exempt from monetary payment.

The Torah did not say “and there shall be no fatal injury,” meaning that if there is a fatal injury he is not punished, אלא only if there is a fatal injury to the man whom he intended to strike. But if he struck the woman, whom he did not intend to strike, he is not exempt from the monetary payment.

If so, how can we say that the verse excludes men in that, if there is a disaster to the woman, they will not be punished, whereas oxen will be punished? Even men are punished when there is a disaster to the woman, since they did not intend to strike her.

Rather, Rav Adda bar Ahava said:

Had the Torah stated only “men,” I would have said that the Torah's intention in this exclusion was:

Men, when they intended to strike one another, shall be punished even though there is a disaster to the woman. The Torah said only “and there shall be no disaster” to the man; but if there is a disaster to the woman, since he did not intend to strike her, he is liable for payment for the fetuses—

The Torah said only, “and there shall be no fatal injury” to the man; but if there is a fatal injury to the woman, since they did not intend to strike her, they are liable to pay for the fetuses—

But

when they intended to strike the woman herself, they shall not be punished,

just as when there was a disaster to the man whom he intended to strike, the Torah exempted him—

but not oxen.

For even when they intended to strike the woman herself, they shall be punished.

Therefore

the Merciful One wrote “

the owner of the ox shall be clean,”

that they are exempt.

And likewise, when Rav Haggai came from the south

[when Rav Haggai came from the south],

he came and brought a teaching with him

[he came and brought a beraita with him] that was taught

in accordance with Rav Adda bar Ahava.

It was taught in another beraita:

It is written in the passage concerning ransom: “And

the owner of the ox shall be clean.”

Rabbi Akiva says:

The verse comes to state that a docile ox is

clean of payment for a slave.

It is not like a forewarned ox that killed a slave, for which its owner is liable to pay a fine of thirty shekels.