Bava Kamma 45a — the Talmud in English

Before its verdict was completed: he sold it ![](pamud.bmp "

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sold

in the meantime, and he plows with it until its verdict is completed

; if he dedicated it, it is dedicated,

and in the meantime, whoever benefited from it has committed sacrilege

; if he slaughtered it, its meat is permitted,

for before its verdict was completed it was not yet forbidden to benefit from it.

And likewise, if he returned it—the guardian—to the house of its owner,

that is to say: if it killed in the guardian’s house through the guardian’s negligence, and the guardian returned it to the owners before its verdict was completed, then it is

returned,

that is to say: he is not liable to pay the owners for the loss of the ox when its verdict is completed for stoning and it becomes forbidden to benefit from it.

But

once its verdict was completed,

it became forbidden to benefit from, and therefore:

if he sold it, it is not sold; if he dedicated it, it is not dedicated;

if he slaughtered it, its meat is forbidden—

And if

the guardian returned it—

after its verdict was completed in the guardian’s house—

to the house of its owners, it is not returned,

and he must pay the owners for the loss of the ox that became forbidden to benefit from.

Rabbi Yaakov says:

Even once its verdict was completed

in the guardian’s house,

if he returned it,

the guardian, to its owners, it is returned,

and he is not liable to pay the owners for the loss of the ox that became forbidden to benefit from.

And just as the Sages and Rabbi Yaakov disputed concerning a guardian, so did they dispute concerning a robber, for we learned in the Mishna below, 96b, concerning robbery: “If it was going out to be stoned, he says to him, ‘Here is yours before you,’” and he is not liable to pay money; whereas in the beraita below, 98b, we learned: “Concerning an ox, before its verdict was completed, he says to him, ‘Here is yours before you,’” and it implies: but once its verdict was completed, he does not say to him, “Here is yours before you.” This is because the Mishna follows Rabbi Yaakov, whereas the beraita follows the Sages.

And we explain:

Can we say that this is the point over which they dispute,

whether it should be said that this is what the Sages and Rabbi Yaakov disputed:

for the Rabbis hold:

since the ox became forbidden to benefit from in the guardian’s house when its verdict was completed,

one does not say concerning objects forbidden for benefit “

Here is yours before you,”

that is to say: if the ox became forbidden to benefit from in the guardian’s house through his negligence, he becomes liable to pay money, and he cannot exempt himself by returning the ox that is forbidden to benefit from; it obligates him to pay money. And likewise, if a stolen object became forbidden to benefit from before the robber returned it [even if this was not through his negligence], he becomes liable to pay money, and he cannot exempt himself by returning the ox that is forbidden to benefit from.

And Rabbi Yaakov holds: one says concerning objects forbidden for benefit “

Here is yours before you,”

that is to say: the guardian and the robber are exempt from payment of money, even though the object became forbidden to benefit from while in their possession.

He said

rejected

Rabba:

Not as you explained, but:

everyone—

both the Sages and Rabbi Yaakov—

holds that with regard to objects forbidden for benefit one says, “Here is yours before you,”

that is to say: if the guardian and the robber did not perform an act with their hands to make it forbidden to benefit from, they are not liable to pay money, and if they returned the object forbidden to benefit from to the owners, they are exempt—

For if so—

according to your words, that a robber cannot return an object that became forbidden to benefit from while in his possession—

let them dispute

the Sages with Rabbi Yaakov also

concerning leavened bread

that was stolen and became forbidden

on Passover

to benefit from while in the robber’s possession, and let them say that he cannot say, “Here is yours before you,” and that he pays money. But we did not learn so in the beraita below, 98b, for there we learned concerning robbery: “Leavened bread over which Passover passed … he says to him, ‘Here is yours before you’ … An ox, before its verdict was completed, he says to him, ‘Here is yours before you.’” But once its verdict was completed, he does not say to him, “Here is yours before you,” because this beraita follows the Sages; nevertheless, when he stole leavened bread and Passover passed over it, he says to him, “Here is yours before you.” But according to your words, this is difficult: just as with an ox whose verdict was completed the robber does not say, “Here is yours before you,” so too with leavened bread he should not say to him, “Here is yours before you

”.

Necessarily, according to the Sages, a prohibition against benefit that comes by itself does not obligate the robber to pay money, nor the guardian when he was negligent with it; and with an ox whose verdict was completed without an act by hand, even the Sages agree that he is not liable to pay money, whether as a guardian or as a robber.

Rather, here—

with regard to the guardian and the robber concerning whom Rabbi Yaakov and the Sages disputed—what are we dealing with? When the guardian or the robber seized it and brought it by hand before the court so that they would complete its verdict, and it is found that they damaged it by hand; therefore, according to the Sages, they are liable to pay money—

And if you will say: If so, why did Rabbi Yaakov disagree and exempt the shomer and the robber, and what is the basis of their disagreement? I will say to you:

They disagree concerning cases in which they conclude the judgment of an ox

to be stoned

without its presence

of the ox:

the Sages and Rabbi Yaakov disagree!

For the Rabbis hold: The judgment of an ox may be completed only in the presence of the ox

For the Sages hold: They conclude the judgment of an ox only in its presence

of the ox, and the shomer is obligated to pay, because:

[The depositor] says to him

the depositor says to the shomer:

If you had returned it to me, I would have driven it away to the marsh; now you have handed my ox over into the hands of those with whom I cannot litigate [If you had returned it to me, I could have driven it away to the marsh and it would not have been forbidden, but you did not do so, and you handed my ox over into the hands of the court, with whom I cannot litigate, and against my will they will conclude its judgment and forbid it for benefit].

Had you returned it to me, I could have driven it away to the marsh and it would not have been prohibited, whereas you did not do so. You delivered my ox into the hands of the court, with which I cannot contend, and against my will they will complete its judgment and prohibit me from deriving benefit from it.

That is to say: Why did you hand it over with your own hands to the court, giving them the possibility of concluding its judgment and forbidding it for benefit?

And Rabbi Yaakov holds: They conclude the judgment of an ox

even

without its presence,

and therefore the shomer [and the robber] is exempt, because

[he] says to him

the shomer says to the depositor:

In the end, they would in any event have concluded its judgment [In any event, they could conclude its judgment], and I, by handing it over, did not cause you more damage than the damage it suffered on its own; and for damage that occurred on its own I am not liable, for concerning things forbidden for benefit they say: “Here is what is yours before you.”

They could have completed its judgment in any event. And I, by delivering it to them, did not cause you any greater loss than the loss it would have suffered on its own. For damage that occurred on its own I am not liable, since with regard to objects prohibited for benefit we say: “Here is your property before you.”

And we explain:

What is the reason of the Sages

who hold that “they do not conclude the judgment of an ox to be stoned without the presence of the ox”:

Because it is stated: “

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

the verse thereby likened the stoning of the ox for killing—to the owners, in order to teach:

Like the death of the owners

for their killing,

so is the death of the ox

for its killing. And we learned:

Just as the owners

are not killed until their judgment is concluded

in their presence,

so too an ox

its judgment is not concluded except

in its presence.

And Rabbi Yaakov,

who does not make this analogy concerning this matter, for he can say to you:

Granted, the owners

must have the judgment concluded in their presence, for

they are parties capable of presenting a claim

to the court;

but an ox,

is it in fact

a party capable of presenting a claim

to the court,

is it?

And it is not reasonable that in this matter as well the verse likened them.

We learned in the Mishna:

He handed it over to an unpaid shomer or to a borrower

to a paid shomer or a renter; they entered in place of the owners. A forewarned ox pays full damage, and an innocuous ox pays half-damage:

The Sages taught: Four entered in place of the owners

to become obligated like them in payments:

And these are they: an unpaid shomer, a borrower, a paid shomer, and a renter,

and this is their law:

If

they killed—

the oxen that were under the guardianship of these people—when they were

innocuous,

then the oxen

are killed [stoned],

stoned],

and

these shomrim

are exempt from the ransom,

for an innocuous ox is not liable for ransom.

And if the oxen killed when they were

forewarned, then the oxen

are

killed, and

the shomrim

pay the ransom, for they entered in place of the owners, and a forewarned ox pays the ransom.

since they entered in place of the owners, and a forewarned ox pays a ransom payment.

And they are obligated

the shomrim

to return the value of

the

ox to its owners,

for it was killed,

except for an unpaid shomer

who is exempt from returning the value of the ox to its owners; and it explains this further.

a. There are two “obligations of guarding”:

The first: “guarding against damage,” which is the guarding that a person is obligated to perform so that his animal will not damage another’s property and will not kill; and if he did not guard it, and it went and caused damage, he pays money, and if it killed, he is liable for ransom.

The second: “guarding the object itself,” which is the guarding that one who receives an animal to guard is obligated to perform: if he did not guard it and it was lost, he is obligated to pay the value of the ox to its owners.

b. There are two “types” of guarding:

“Inferior guarding,” which is a door capable of withstanding only an ordinary wind.

“Superior guarding,” which is a door capable of withstanding an extraordinary wind.

c. Rabbi Meir and Rabbi Yehuda disagreed in the Mishna [on the next page] concerning the law of “guarding against damage” of a forewarned ox: with which “type of guarding” is he obligated?

According to Rabbi Meir, the guarding against damage of a forewarned ox is “superior guarding.”

According to Rabbi Yehuda, the guarding against damage of a forewarned ox is “inferior guarding.”

d. The “guarding of the object itself” that obligates the shomrim is “inferior guarding” for an unpaid shomer. Since the shomer guards with less than inferior guarding, he is “negligent,” and an unpaid shomer is liable for negligence. But a paid shomer, who is liable even for theft and loss that are not “negligence,” has “superior guarding”; for if he guarded with only “inferior guarding,” although he is not “negligent” but is partially compelled, nevertheless this compulsion is similar to the compulsion of theft and loss, for which a paid shomer is liable.

e. Rabbi Meir and Rabbi Yehuda disagreed concerning the guarding of a renter:

According to Rabbi Meir, the law of a renter is like the law of a paid shomer in all its details, and it follows that he is obligated in superior guarding.

According to Rabbi Yehuda, the law of a renter is like the law of an unpaid shomer in all its details, and it follows that inferior guarding is sufficient for him.

f. The shomrim who are obligated in “guarding against damage”: the “type of guarding” in which they are obligated regarding “ransom” is entirely like the guarding of the owners, and even an unpaid shomer, who regarding “guarding the object itself” is obligated only in inferior guarding, is nevertheless obligated in superior guarding for a forewarned ox according to Rabbi Meir; and conversely, even a paid shomer, who regarding “guarding the object itself” is obligated in “superior guarding,” requires only inferior guarding regarding damage and ransom, according to Rabbi Meir, who holds that a forewarned ox requires only inferior guarding.

g. The liability of the shomrim for ransom to the heirs of the slain person is by virtue of “guarding against damage,” whereas the liability of the shomrim for the value of the ox to the owners is by virtue of “guarding the object itself.” It follows that if an unpaid shomer performs inferior guarding and the ox kills and is stoned, he is liable for ransom according to Rabbi Meir, but he is not liable for the value of the ox to the owners.

They said,

the members of the academy were astonished concerning what we learned, that only the unpaid shomer is exempt from the value of the ox to the owners: in either case it is difficult, for

what are the circumstances

in which the beraita is speaking?

If he guarded it [if the shomrim guarded it]

with superior guarding, so that it would not gore a person and become liable for death, and it killed through the compulsion of the shomrim, if so,

even all of them—

also should be exempt,

even all the shomrim [except for the borrower, who is liable even in cases of compulsion], should be exempt from paying the value of the ox to the owners, for they were compelled with regard to the loss of the ox.

And if he did not guard it

at all [and if the shomrim did not guard it at all], if so,

even an unpaid shomer should be liable

for the value of the ox to the owners!?

They said,

the members of the academy answered:

Here we are dealing with:

[It is a case where] he guarded it [all four shomrim guarded it]

[all four custodians guarded it]

with inferior guarding,

that is, a door capable of withstanding only an ordinary wind,

but he did not guard it with superior guarding,

that is, a door capable of withstanding even an extraordinary wind; and when the animal went out through this door, which was broken through by an extraordinary wind, this is not “negligence,” but rather resembles “theft and loss,” and therefore:

an unpaid shomer

is exempt from paying the value of the ox to the owners, since

his guarding obligation has ended [that is to say, he is not obligated in guarding superior to this], for he is obligated only for negligence, and “inferior guarding” is not negligence.

[that is, he is not required to provide better guarding], since he is liable only for negligence, and inferior guarding is not negligence.

And whereas

these

—a paid bailee and a renter, and all the more so a borrower—are liable for the value of the ox to the owners, since

their guarding has not ended.

They said:

The members of the yeshiva were astonished: But

like whom

does this beraita hold in the dispute in which Rabbi Meir and Rabbi Yehuda disagreed concerning the type of guarding required for a mu'ad in “guarding against damage,” for according to Rabbi Meir: a mu'ad requires “superior guarding,” whereas according to Rabbi Yehuda: “inferior guarding” is sufficient for it”:

If it is according to Rabbi Meir,

for whom inferior guarding is not sufficient for a mu'ad, and for that reason the beraita in its first clause obligates [one to pay] kofer, even though the ox was guarded with “inferior guarding”—