Bava Kamma 45a (מה.) — the Talmud in English

Before its verdict was finalized: if he sold it

it is sold

in the meantime, and he may plow with it until its verdict is finalized

; if he consecrated it, it is consecrated

, and in the meantime, whoever derives benefit from it has committed sacrilege

; if he slaughtered it, its meat is permitted

, because before its verdict was finalized it was not yet forbidden to derive benefit from it - And likewise, if

the bailee returned it to the owner’s premises

, meaning: if it killed someone on the bailee’s premises through the bailee’s negligence, and the bailee returned it to the owner before its verdict was finalized, it is

returned

, meaning: he is not required to compensate the owner for the loss of the ox when its verdict is later finalized for stoning and it becomes forbidden to derive benefit from it.

But

once its verdict was finalized

it became forbidden to derive benefit from it, and therefore:

If he sold it, the sale is invalid; if he consecrated it, the consecration is invalid;

if he slaughtered it, its meat is forbidden -

And if

the bailee returned it

after its verdict had been finalized on the bailee’s premises

to its owner’s premises, it is not considered returned

, and he must compensate the owner for the loss of the ox that became forbidden to derive benefit from.

Rabbi Yaakov says:

Even after its verdict was finalized

on the bailee’s premises, if

the bailee returned it

to its owner, it is considered returned

, and he is not required to compensate the owner for the loss of the ox that became forbidden to derive benefit from.

Just as the Sages and Rabbi Yaakov dispute the matter with regard to a bailee, so too do they dispute it with regard to 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 that which is yours before you,’” and he is not required to pay its value. Yet in the beraita below, 98b, we learned: “With regard to an ox, before its verdict was finalized, he says to him, ‘Here is that which is yours before you,’” implying that once its verdict was finalized, he does not say to him, “Here is that which 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 disagree

, that this is what the Sages and Rabbi Yaakov dispute:

For the Rabbis hold

: Since the ox became forbidden to derive benefit from it on the bailee’s premises when its verdict was finalized,

one does not say concerning objects forbidden for benefit “

Here is that which is yours before you,”

meaning: If the ox became forbidden to derive benefit from on the bailee’s premises through his negligence, he becomes liable to pay its value and cannot exempt himself by returning the ox, which is forbidden to derive benefit from; it makes him liable to pay its value. Likewise, if the stolen object became forbidden to derive benefit from before the robber returned it [even if this did not occur through his negligence], he becomes liable to pay its value and cannot exempt himself by returning the ox that is forbidden to derive benefit from.

And Rabbi Yaakov holds: One does say concerning objects forbidden for benefit “

Here is that which is yours before you,”

meaning: The bailee and the robber are exempt from paying its value, even though the object became forbidden to derive benefit from while it was in their possession.

He said

—he rejected this explanation—

Rabba:

It is not as you explained, but rather:

Everyone

—both the Sages and Rabbi Yaakov—

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

meaning: If the bailee and the robber did not actively cause the object to become forbidden to derive benefit from, they are not liable to pay its value; and if they returned the object forbidden to derive benefit to the owner, they are exempt -

For if so

—as you said, that a robber cannot return an object that became forbidden to derive benefit while in his possession—

let the Sages dispute

with Rabbi Yaakov also

with regard to

stolen leavened bread that became forbidden

during Pesaḥ

in the robber’s possession, and let them say that he cannot say, “Here is that which is yours before you,” and must pay its value. But we did not learn this in the beraita below, 98b, for there we learned concerning robbery: “Leavened bread over which Pesaḥ passed ... he says to him, ‘Here is that which is yours before you’ ... With regard to an ox, before its verdict was finalized, he says to him, ‘Here is that which is yours before you.’” But once its verdict was finalized, he does not say to him, “Here is that which is yours before you,” because this beraita follows the Sages. Nevertheless, when he stole leavened bread and Pesaḥ passed over it, he says to him, “Here is that which is yours before you.” According to your words, this is difficult: Just as, with regard to an ox whose verdict was finalized, the robber does not say, “Here is that which is yours before you,” so too, with regard to leavened bread, he should not say to him, “Here is that which is yours before you

”.

Necessarily, according to the Sages, a prohibition against deriving benefit that arises on its own does not make the robber liable to pay its value, nor does it make the bailee liable when he was negligent with it. With regard to an ox whose verdict was finalized without any active deed, even the Sages agree that neither the bailee nor the robber is liable to pay its value.

Rather, here

—in the case of the bailee and the robber concerning whom Rabbi Yaakov and the Sages dispute—what are we dealing with? We are dealing with a case in which the bailee or the robber seized it and actively brought it to the court so that its verdict would be finalized, and it was therefore damaged through his direct action. Consequently, according to the Sages, they are liable to pay its value -

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

They disagree with regard to a case in which the judgment of an ox

to be stoned

is completed in its absence

of the ox:

the Sages and Rabbi Yaakov

are disputing this matter!

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

of the ox. And the shomer is liable to pay, because

the owner who entrusted the ox said

to the shomer:

Had you returned it to me, I would have driven it away to the marsh; now you have delivered my ox into the hands of those with whom I cannot litigate

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 deliver it physically into the hands of the court, thereby giving them the possibility of completing its judgment and prohibiting it from being used for benefit?

But Rabbi Yaakov holds: The judgment of an ox may be completed

even

in its absence,

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

the shomer said

to the owner who entrusted the ox:

In any event, they would have completed its judgment

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 “the judgment of an ox to be stoned may not be completed in the absence of the ox”?

Because it is stated: “

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

and the verse thereby juxtaposed the stoning of the ox—its execution—to that of the owner, in order to teach:

Just as the death of the owner

involves his execution,

so the death of the ox

involves its execution. And we learn:

Just as the owner

is not executed until the judgment is completed

in his presence,

so an ox

may have its judgment completed only

in its presence.

But Rabbi Yaakov,

who does not make this juxtaposition with regard to this matter, can say to you:

Granted, the owner

must have the judgment completed in his presence, for

they are parties capable of presenting a claim

before the court;

but an ox,

is it

capable of presenting a claim

before the court

itself?

And it is not reasonable that the verse juxtaposed them even with regard to this matter.

We learned in the Mishna:

If one handed it over to an unpaid shomer or to a borrower,

to a paid shomer or a renter, they assume the position of the owners: a forewarned ox pays full damages, and an innocuous ox pays half-damages:

The Sages taught: Four assume the position of the owners

and become liable to make payments like them:

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

and their law is as follows:

If

they killed

the oxen entrusted to the care of these people—when they were

innocuous,

then the oxen

are killed

[stoned],

and

these shomrim

are exempt from the ransom,

since an innocuous ox is not liable for ransom.

And if the oxen killed someone when they were

forewarned,

then the oxen

are killed, and

the shomrim

pay the ransom,

since they assume the position of the owners, and a forewarned ox pays the ransom.

And they are liable

the shomrim

to return the value of

the

ox to its owners,

since it was killed,

except for an unpaid shomer,

who is exempt from returning the value of the ox to its owners; and the Gemara proceeds to explain this.

A. There are two “obligations of guarding”:

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

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

B. There are two “types” of guarding: “Less effective guarding,” which is a door capable of withstanding only an ordinary wind. “Superior guarding,” which is a door capable of withstanding an extraordinary wind.

Inferior guarding,” meaning a door that can withstand only an ordinary wind. “

Superior guarding,” meaning a door that can withstand even an extraordinary wind.

C. Rabbi Meir and Rabbi Yehuda disputed in the Mishna [on page 45b] with regard to the “guarding against damage” required for a forewarned ox: which “type of guarding” is he liable to provide?

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

According to Rabbi Yehuda, the guarding against damage required for a forewarned ox is “less effective guarding.”

D. The “guarding of the animal itself” required of the shomrim is “less effective guarding” for an unpaid shomer. Since the shomer who provides less than less effective guarding is negligent, and an unpaid shomer is liable for negligence. By contrast, a paid shomer, who is liable even for theft and loss that are not “negligence,” must provide “superior guarding.” If he provided only “less effective guarding,” although he is not negligent but is partially subject to unavoidable circumstances, nevertheless these circumstances resemble the unavoidable circumstances of theft and loss, for which a paid shomer is liable.

E. Rabbi Meir and Rabbi Yehuda disputed the guarding required of a renter:

According to Rabbi Meir, the law of a renter is like that of a paid shomer in all respects, and therefore he is liable to provide superior guarding.

According to Rabbi Yehuda, the law of a renter is like that of an unpaid shomer in all respects, and therefore less effective guarding suffices for him.

F. The shomrim who are liable for “guarding against damage” are required, with regard to “ransom,” to provide the same type of guarding as the owners are required to provide in every respect. Even an unpaid shomer, who with regard to “guarding the animal itself” is liable only for less effective guarding, is nevertheless liable, according to Rabbi Meir, to provide superior guarding for a forewarned ox; Conversely, even a paid shomer, who with regard to “guarding the animal itself” is liable to provide superior guarding, need provide only less effective guarding with regard to damage and ransom, according to Rabbi Meir, who holds that less effective guarding suffices for a forewarned ox.

G. The liability of the shomrim for ransom to the heirs of the deceased derives from “guarding against damage,” whereas their liability to pay the value of the ox to its owners derives from “guarding the animal itself.” Thus, if an unpaid shomer provides less effective guarding and the ox kills and is stoned, he is liable for ransom according to Rabbi Meir, but he is not liable to pay the value of the ox to its owners.

They said

The members of the academy wondered about what we learned—that only an unpaid shomer is exempt from paying the value of the ox to its owners. For in either case there is a difficulty:

What are the circumstances

in which the beraita is speaking?

If they guarded it

[if the shomrim guarded it] with superior guarding, so that it would not gore a person and become liable to be put to death, and it killed despite circumstances beyond the shomrim’s control, then

even all of them

should also be exempt,

even all the shomrim [apart from the borrower, who is liable even in cases of unavoidable circumstances], should be exempt from paying the value of the ox to its owners, since they were not responsible for the loss of the ox.

And if they did not guard it

at all [and did not guard it at all], then

even an unpaid shomer should be liable

to pay the value of the ox to its owners!?

They said,

the members of the academy answered:

What are the circumstances here:

They guarded it

[all four shomrim guarded it] with

less effective guarding,

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

but they did not provide superior guarding,

that is, a door capable of withstanding even an extraordinary wind. When the animal left through this door, which was breached by an extraordinary wind, this is not “negligence,” but resembles “theft and loss.” Therefore:

an unpaid shomer

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

his guarding obligation has reached its limit

[that is, he is not obligated to provide stronger guarding than this], since he is liable only for negligence, and “less effective guarding” is not negligence.

But as for

these—

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

their safeguarding had not ended.

They said:

The yeshiva scholars wondered: And

according to whose view

does this beraita follow in the dispute between Rabbi Meir and Rabbi Yehuda concerning the type of safeguarding required for a mu'ad under “safeguarding against damages”? According to Rabbi Meir, a mu'ad requires “superior safeguarding,” while according to Rabbi Yehuda, “lesser safeguarding” suffices:

If it is according to Rabbi Meir,

who does not consider lesser safeguarding sufficient for a mu'ad, and therefore the beraita obligates one in the first clause to pay kofer, even though the ox was guarded with “lesser safeguarding”—