Bava Kamma 44a (מד.) — the Talmud in English

If, with regard to an ox that killed a person,

small oxen

that killed

,

just as

oxen

large

that killed, and even they are liable to stoning,

is it not logical that it should be liable

for

the small ones

that were killed

just as for the large ones

that were killed?

This is not difficult, for one cannot derive it either through a binyan av or through a kal va-chomer, because:

Can you say

that it is liable for small ones just as for large ones? Rather,

a person who kills a person, since he is liable

for injuring him

for four matters

in addition to damages—namely, pain, medical expenses, loss of work, and humiliation;

can you say

that it should be liable for killing small ones as for large ones even

in the case of an ox

killing a person,

which

is

not liable

for injury

for four matters

but only for damages?

Therefore,

the verse states: “

Whether it gores a son or gores a daughter,”

to render

even an ox that kills a person

liable for small ones as for large ones.

And I have only—

that they are liable to stoning for killing small ones—

in the case of forewarned oxen; from where

do we know that an innocuous ox is also liable to stoning for killing small ones? And if you say: It is obvious, for

is it not a logical inference

that we learn it through a binyan av:

Since it rendered

the ox liable to stoning

for

killing

a man and a woman, and rendered

it liable to stoning also

for

killing

a son and a daughter, just as when it rendered

it liable

for killing a man and a woman, you did not distinguish between an innocuous ox and a forewarned one, so too, when it rendered it liable for killing a son and a daughter, you should not distinguish between an innocuous ox and a forewarned one.

Furthermore:

this is a

kal va-chomer

that an innocuous ox should be liable for killing small ones!?

If, in the case of a man and a woman, whose power is diminished with regard to damages,

as, if they cause damage, they are liable to make payment,

you did not distinguish

when they were killed

between an innocuous ox and a forewarned one—

a son and a daughter

who are small

and whose power is enhanced with regard to damages,

as, if they cause damage, they are not liable to pay,

is it not logical that you should not distinguish between them

when they are killed

between an innocuous ox and a forewarned one?

You say:

That is not so, for it is impossible to derive from a man and a woman that the law of an innocuous ox is like that of a forewarned ox, neither through a binyan av nor through a kal va-chomer!

You cannot derive it through a binyan av, because

do we in fact derive

through a binyan av

a lenient case from a stringent one in order to make it more stringent, so that you would derive that an innocuous ox should be liable for small ones from a forewarned ox, which is liable for small ones!?

And moreover,

if

the verse made stringent

with regard to

the stringent forewarned ox

which is liable to ransom, by making it liable to stoning for killing small ones,

would you make stringent the lenient innocuous ox

which is not liable to ransom, by making it liable to stoning even for killing small ones!?

Furthermore,

that is, you also cannot derive it through a kal va-chomer, because:

If you say, with regard to a man and a woman,

that an innocuous ox is liable to stoning for killing them, because

they are liable for mitzvot, can you say

that this applies even

to a son and a daughter, who are exempt from mitzvot,

so that an innocuous ox is liable for killing them!?

And since without a verse we would not know that an innocuous ox is liable for killing a son and a daughter,

the verse states: “

Whether it gores a son or gores a daughter.”

The verse repeated the expression “gores” in order to teach us:

The goring

of a son and a daughter

by an innocuous ox; the goring

of a son and a daughter

by a forewarned ox—

Goring

of a son and a daughter

to cause their death

—

goring

of a son and a daughter

to cause them damage, to teach that it is liable to pay for the damage caused to the minor boy and minor girl.

Mishna:

An ox that was rubbing against a wall, and the wall fell

on a person

without the ox’s intention

—or an ox that

intended to kill an animal

for which the ox is not liable to stoning,

but

ultimately

killed a person

—

or the ox intended

to

kill the

gentile

for whose killing it is exempt,

but killed a Jew—

or the ox intended

to

kill a

miscarried fetus

for whose killing it is exempt,

but killed a viable child—

In all these cases,

the ox is exempt

from stoning, since it did not intend to kill one for whose killing it would be liable.

Gemara:

Shmuel said:

When we learned “exempt,” this means

exempt from death, but liable for ransom.

Although the ox is not subject to stoning, the owner is liable for ransom, because Shmuel expounds ]from “if ransom” to include unintentional killing as equivalent to intentional killing with regard to ransom. And Rav said: It is exempt from both this and that.

If the ox is not subject to stoning, the owner does not pay ransom,

and he does not expound “if ransom” to include it. We raise an objection to Shmuel:

And why

is he liable for ransom when the ox was rubbing against a wall and it fell upon a person?

But it is an innocuous ox,

and an innocuous ox is not liable for ransom!?

And we answer: As Rav said [below, 48b] regarding what we learned in the Mishna below, 47b: “One who brought his ox into another’s courtyard without permission … the ox fell into a pit belonging to the owner of the courtyard and fouled its water, he is liable; if the father or son of the owner of the courtyard was inside it [and the ox killed him in its fall], the owner of the ox pays ransom.” We raise an objection there: But it is an innocuous ox! And Rav answers:

In a case where it was forewarned to fall upon people in pits—

Here too,

the case is one

where it was forewarned to rub intentionally against people on walls.

And we wonder:

If so,

since the case is one in which it did this intentionally,

it is subject to execution

[it is deserving of death] for this goring; how, then, can the Mishna have taught that it is exempt from death!?

Granted, there,

in Rav’s statement, there is no difficulty: It is not subject to execution because of the falls at the beginning and thereby became liable to stoning, and how, then, could it become forewarned? For one can explain the case as Rav Yosef will explain below, 48b, as one in which

the ox saw

grass

[on the edge of the pit] and came to eat it,

and fell

into the pit unintentionally. Thus, the ox did not intend to kill him, and therefore did not become liable to stoning.

But here,

with regard to the wall,

what can be said!?

Since it intended to do so, it is liable to stoning; why, then, does the Mishna teach that it is exempt from death for this goring!?

And we answer:

Here too, the case is one of rubbing

on the fourth goring

against the wall for its own pleasure,

and it did not intend to kill with it; rather, it intended to kill in the initial gorings.

And how do we know

that it is rubbing against the wall for its own pleasure, so as to exempt it from death? Perhaps it is rubbing against the wall in order to make it fall upon people, in which case it is liable to death! And we answer: The case is one

where, after it fell, it continued rubbing against it

it rubbed against the wall even after it had fallen; therefore, it certainly intended only to rub itself.

against the wall for its own pleasure,

and it did not intend to kill by means of it; it was only in the earlier gorings that it intended to kill.

And how do we know

that it is rubbing against the wall for its own pleasure, so that it should be exempt from execution? Perhaps it is rubbing against the wall in order to make it fall onto people, in which case it would be liable to execution. We answer: This is a case

where, after it fell, it continued rubbing against it

[the bull rubbed against the wall even after it had fallen], and it is certain that its only intention was the rubbing itself.