Bava Kamma 44b (מד:) — the Talmud in English

And still

the difficulty remains for Shmuel, who obligates one to pay kofer when the ox pushed the wall and the wall killed the person:

they are

pebbles,

for it did not kill him with its body; rather, the wall fell upon the person through the force of the ox and killed him. Yet the Torah obligated payment of kofer only in a case analogous to goring—which is written in the passage—where the ox acts with its body.

that is, the ox pushes the wall upon the person even at the time the wall is falling.

A beraita was taught in accordance with Shmuel,

who obligates payment of kofer in an unintentional case, even though the ox is exempt from execution,

and it is a refutation of Rav,

who exempts one from kofer in an unintentional case!

As it was taught:

There is

an ox that kills a person and is

liable

for execution and for kofer; there is one liable for kofer but exempt from execution; there is one liable for execution but exempt from kofer; and there is one exempt from both;

and the beraita proceeds to explain each case.

What are the circumstances?

An

attested

ox that killed a person

intentionally: It is liable for execution and for kofer.

An

attested

ox that killed a person

unintentionally: It is liable for kofer—

in accordance with Shmuel—

but exempt from execution.

An

unattested

ox that killed

intentionally: It is liable for execution but exempt from kofer,

since the Torah did not obligate an unattested ox in kofer.

An

unattested

ox that killed

unintentionally: It is exempt from this

and from that,

from execution because it acted unintentionally, and from kofer because it is unattested.

And

the law of

damages

caused by the ox

unintentionally:

Rabbi Yehuda obligates

in payment of the damage,

and Rabbi Shimon exempts.

And we explain:

What is Rabbi Yehuda’s reason

for obligating?

Because

Rabbi Yehuda derives

the law of payment for damage caused by an ox

from

payment of

its kofer: Just as with its kofer,

when it killed

unintentionally, it is

therefore

liable

for it, as we derive: “If kofer,”

so too

payment for

damages is also obligatory when caused unintentionally.

And Rabbi Shimon derives

the obligation to pay for damage

from

the obligation of

the ox’s execution [

the stoning of the ox].

Just as with its execution,

when it acts

unintentionally,

it is

exempt

from it,

so too

the obligation for

damages,

when it acts

unintentionally,

it is

exempt.

And we challenge this:

Rabbi Yehuda should also derive the law from its execution,

to exempt it from payment for damages when it acts unintentionally!?

And we answer: Rabbi Yehuda holds:

Payment

for damages is derived

from

kofer, which is also

a payment, but payment cannot be derived from execution.

And we challenge this:

Rabbi Shimon should also derive the law from its kofer,

to obligate it in payment for damages when it acts unintentionally!? And we answer:

One derives

payment for damages, which is

the liability of the ox,

meaning that the liability is for the act of its ox,

from

stoning, which is

the liability of the ox; unlike kofer,

from which one cannot derive the law of damages, since

it is the liability of the owners,

meaning that it comes as atonement for the owners’ souls.

We learned in the Mishna:

He intended to kill the animal but killed the person: He is exempt:

he is exempt:

And we infer:

This

means that

if he intended

the ox

to kill

this

person,

for had it killed him it would have been liable to be stoned,

but it killed this one [

another person],

the ox is liable

to be stoned, since in all the cases listed in the Mishna as exemptions, the ox intended to kill someone who would not have been liable to be stoned had it killed him.

If so,

our Mishna [

our Mishna]

is not in accordance with Rabbi Shimon!

As it was taught: Rabbi Shimon says: Even if he intended

the ox

to kill this one but killed that one, he is exempt

from stoning.

And we explain:

What is Rabbi Shimon’s reason?

Since

the verse says: “

The ox shall be stoned, and its owner shall also be put to death,”

we derive, according to everyone:

As is the death of the owner, so is the death of the ox;

therefore Rabbi Shimon, in accordance with his own position, exempts the ox from stoning when it did not intend to kill the person whom it killed:

Just as the owners

are not liable—according to Rabbi Shimon himself, in the Mishna in Sanhedrin 79a—

until he intended it

for the person whom he killed,

so too the ox

is not liable to be stoned

until he intended it

for the person whom he killed, and not when he intended to kill another person.

And we explain:

And from where do we know concerning the owners themselves—

according to Rabbi Shimon—that they are exempt?

Because

the verse says [Deuteronomy 19:11]: “When a man hates his fellow

and lies in wait for him and rises against him

and strikes him mortally and he dies … your eye shall not pity him, and you shall eliminate the blood of the innocent from Israel, and it will be good for you.” And we learn from this:

until he intends it for him.

And the Rabbis—

who disagree with Rabbi Shimon and impose execution on a person who intended to kill one subject to liability but killed another—

what do they do with this “

and lies in wait for him”

verse?

They say,

as explained by

the school of Rabbi Yannai:

The verse comes to teach:

to exclude one who throws a stone into

a group containing gentiles and Jews, and a Jew who is not subject to liability is killed; this is not considered an intention to kill a Jew, and in such a case he is exempt even according to the Rabbis.

And we challenge this: But

what are the circumstances [

in which the verse was needed to exclude him]?

If you say that there are

in that group

nine gentiles and one Jew among them, it follows that they are mostly gentiles,

and without the verse he would be exempt, since this is like intending to kill a gentile but killing a Jew, for which he is exempt.

Alternatively,

even if there were not a majority of gentiles but

half

gentiles

and half

Jews, no verse is needed to exclude him, since

in a capital case, uncertainty is treated leniently.

If so, in what circumstances was the verse needed to exclude him!?

And we answer:

It is necessary

to exclude him in a case such as one in which there are

nine

Jews in the group

and one gentile!

The verse comes to teach us

that even though the majority are Jews,

and there might have been reason to regard him as having intended to kill a Jew, nevertheless he is exempt, because

since there is one gentile among them, it is

a minority that is

fixed,

and every

minority that is

fixed

is considered as though there were here neither a minority nor a majority, but

as though it were half and half, and

therefore he is exempt, because

in a capital case, uncertainty is treated leniently.

Mishna:

The ox of a woman

that gored a person and killed him.

that is, the ox belonging to minors] who have no guardian.

And

the ox of orphans [

meaning, the ox of minors] who have no guardian.

And

the ox of a guardian, meaning, the ox of minor orphans who have a guardian.

An ox belonging to the wilderness [

an ownerless ox]. The ox of consecrated property.

A gentile convert’s ox that died and has no heirs,

which is ownerless.

All of these cases concern oxen that gored a person and killed him;

these

oxen

are liable to be put to death.

Rabbi Yehuda says: An ox belonging to the wilderness, an ox belonging to the Temple

and

an ox belonging to a convert who died without heirs are exempt from execution, since they have no owners.

Gemara:

The Sages taught:

“Ox”

“ox”

seven.

The word “ox” appears seven times in the Torah’s passage concerning an ox that killed a person, and died. Why?

One of them is written for its own matter, and the other six serve

to include:

a.

a woman’s ox;

b.

an orphan’s ox;

c.

a guardian’s ox;

d.

an ox belonging to the wilderness;

e.

an ox

belonging to the Temple;

f.

an ox belonging to a convert who died without heirs,

for all of these are liable to execution when they kill a person.”

Rabbi Yehuda says: An ox belonging to the wilderness, an ox belonging to the Temple

and

an ox belonging to a convert who died without heirs are exempt from execution, since they have no owners.

Rav Huna said: Rabbi Yehuda would exempt

these,

even

if they

gored

while they were in the possession of an ordinary person,

and ultimately

before their verdict was finalized, he

consecrated them; and even if they

even if they

gored

while in the possession of owners,

and ultimately

before their verdict was finalized, he

declared them ownerless, or the convert died. The reason will be explained below.

And we explain:

And we explain:

From where

did Rav Huna learn this concerning Rabbi Yehuda’s view?

From the fact that it teaches

in the beraita, in Rabbi Yehuda’s statement,

two

oxen, although it could have included them together, as it teaches:

a.

an ox belonging to the wilderness;

b.

and an ox belonging to a convert who died without heirs.

But

“an ox belonging to a convert who died”

what is it—that is to say, what is the reason for its exemption? It is surely because

once it has no heirs, it is

equivalent to an ownerless ox.

If so,

“an ox belonging to the wilderness” is identical to an ox belonging to a convert who died without heirs,

so why were two oxen that are really one listed?

Rather, is it not teaching us this: Even if it gored and ultimately was consecrated, or gored and ultimately was declared ownerless, it is exempt;

that is, the beraita added the case of an ox belonging to a convert who died in order to teach us that even if it gored while in the convert’s possession and the convert subsequently died, it is exempt. It follows that we also learn that if it gored and was subsequently consecrated, it is exempt.

Conclude from it!

or

It was taught likewise: Rabbi Yehuda said further: Even if it gored and ultimately was consecrated,

or

gored and ultimately

was declared ownerless, it is exempt, as it is stated [Exodus 21:29]: “And if an ox was in the habit of goring from yesterday and the day before, 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.” We derive from the verse’s statement

that: “

And its owner was warned and it killed, etc.”

And we challenge the wording of the beraita: “until the death and the standing in judgment are simultaneous”:

that the killing and the appearance in court must coincide.

And we challenge the wording of the beraita: “that the killing and the appearance in court must coincide”:

But

is it truly the case that

the final judgment

for stoning

is not required

to coincide as well, such that the beraita mentioned only the appearance in court?

But

“the ox shall be stoned”

concerns the final judgment!

Rather, say: Until the killing, the appearance in court, and the final judgment coincide.

Mishna:

Mishna:

An ox that is going out to be stoned,

that is, its verdict has been finalized for stoning because it killed a person,

and its owner consecrated it, it is not consecrated,

since the ox became prohibited for benefit once its verdict was finalized, and items prohibited for benefit are not in a person’s possession to consecrate them.

And if

he slaughtered it

after its verdict had been finalized for stoning, then

its flesh is prohibited

for consumption and benefit.

But if before its verdict had been finalized:

its owner consecrated it—it is

consecrated

until its verdict is finalized and it is stoned; the practical consequence is that if someone derives benefit from it in the interim, he has committed misuse of consecrated property.

And if he slaughtered it, its flesh is permitted.

And the Mishna explains an additional law:

If the owners entrusted

the ox, before it gored,

to an unpaid bailee or to a borrower,

[or to a borrower],

to a paid bailee or to a renter:

They entered

in place of

the owners,

that is, they become liable for damages like the owners. And if

the forewarned ox

was

liable to pay full damages, and

if

it was a tam,

it was

liable to pay half-damages.

Gemara:

The Sages taught: An ox that killed: