Bava Kamma 4a (ד.) — the Talmud in English

And what the Mishna says, “And the mav'eh is not like the ox,” means:

“And it is not comparable,”

the damage caused by

the tooth

which is more stringent,

for

the ox’s

intention is not

to cause damage,

is not comparable to the horn,

which is more lenient,

whose intention

the ox’s

is to cause damage.

Therefore, had the Torah written only the law of the tooth, we could not have derived the law of the horn from it.

But the Gemara challenges that the reasoning is the opposite, and according to this explanation of Rav Yehuda, if the horn had not been written, I would have derived it from the tooth:

“Is it not a kal va-chomer?”

Are the considerations not the opposite? This is surely deriving a stringent matter from a lenient one!

For

, as for the tooth,

the lenient case,

whose intention is not

the ox’s

to cause damage, it is liable,

and the owner of the ox must pay for the damage caused by his ox.

The horn,

which is more stringent than the tooth,

whose intention is to cause damage,

is it not all the more so

that the owner of the ox is liable to pay for the damage?

The Gemara attempts to resolve the explanation according to Rav Yehuda:

It was necessary,

to write the law of damage caused by the horn, and we could not have derived it from the law of the tooth, despite the fact that the horn’s intention is to cause damage. For

it might have entered your mind to say

[that one might have thought] that one is exempt for the horn,

just as is the case with a slave and a maidservant,

as we find regarding the law of a person’s slave and maidservant who caused damage, that their master is exempt from paying for the damage they caused.

The Gemara continues and explains its statement:

A slave

and a maidservant—is it not so that, although

[the question is: is it not so that, despite the fact]

their intention is to cause damage, nevertheless they are exempt,

even though they cause damage with the intention of causing damage, their owners are nevertheless exempt from paying for the damage they cause.

So too here,

I would say the same regarding the horn:

it makes no difference,

the law would not differ, and the owner of the ox would be exempt from paying for damage caused by the horn, despite the fact that the intention of the ox that gores with its horn is to cause damage. Therefore, the Torah had to write it.

But the Gemara rejects the answer:

Rav Ashi said: Is it that

the fact that the owners are exempt for damage caused by

a slave and maidservant

means that their owners are exempt

without there being a substantial reason for it? —

Is there not a significant [special] reason for this? The reason is that if you make the master liable for damage caused by the slave, there is concern

lest his master anger him

[lest his master provoke him,]

and

the slave—in revenge—

will go and set fire

to

his fellow’s grain stack,

in order to make his master liable to pay for the damage, and he will do this every time,

with the result that

this slave

will make his master liable for one hundred maneh every day.

This is the special reason that the master of the slave and maidservant is exempt for their damage, and not because their intention is to cause damage. On the contrary, the intention to cause damage is a reason to impose liability more strongly. The question on Rav Yehuda’s statement therefore returns. The Gemara consequently explains the necessity for the two cases in the Mishna in the opposite manner:

Rather, he challenges

[the Mishna’s challenge to deriving the law of the horn and the tooth from one another]

as follows

[this is its meaning]: “The ox is not comparable to the mav'eh.” The meaning is:

the horn,

whose intention is to cause damage, is not comparable to the tooth, whose intention is not to cause damage.

That is, the horn possesses a special stringency: the ox’s intention is to cause damage, whereas the tooth does not possess this stringent characteristic. Therefore, had the Torah not written the law of the tooth, I would not have derived it from the horn.”

And the Mishna continues and states the tzrichuta in the reverse direction as well, “And the mav'eh is not like the ox,” and its explanation is:

“And the tooth, which derives benefit from causing damage, is not like the horn, which derives no benefit from causing damage.”

That is, the tooth has the serious characteristic that it derives benefit from causing damage, whereas the horn does not have this serious characteristic. Therefore, had the Torah not written “horn,” I would not have derived it from “tooth.”

But the Gemara challenges this interpretation:

“And what of ‘foot’” [what did the tanna do with it]? That is, where did the tanna mention the “foot,” which is the third category of ox? Did he

What did the tanna do with it? In other words, the foot, which is the third category of ox-caused damage, where did the tanna mention it? Are we to say that he

“omit it?!” [Did the tanna omit it and not mention it in the Mishna?!]

and did not mention it in the Mishna?!

And the Gemara resolves: The tanna mentioned it by implication later in the Mishna [9b], when he taught:

“When it caused damage, the damager is liable

to pay compensation for the damage from the best land.” This is superfluous, since this matter has already been explained. Rather, the tanna came

to include the foot,

to include and bring in the “foot,” teaching that one is liable for damage caused by it.

The Gemara rejects the resolution:

“Then let him teach it explicitly,”

so that the tanna would teach the foot explicitly, just as he taught the horn and the tooth; why does he mention the foot only by implication?!

Therefore, the Gemara explains the Mishna differently:

“Rather, Rava said:

The tanna’s mention of “ox” does not refer to the horn, as Rav Yehuda explained. Rather,

the tanna taught ‘ox’ with regard to its foot,

the ox mentioned by the tanna of our Mishna refers to the foot. And

“mav'eh”

that he mentioned refers

to its tooth [tooth]. The place where the horn is mentioned will be explained below.

The Gemara continues to explain the necessary distinction according to this interpretation:

The Gemara continues to explain the tzrichuta according to this interpretation:

“And this is what he is saying:

When the tanna said in the Mishna, “The ox is not like the mav'eh,” this is what he said:

The foot, whose damage is common, is not like the tooth, whose damage is not common.

That is, the foot has a stringency that its damage is common [frequent], whereas the tooth does not have this stringency. Therefore, had the Torah not written “tooth,” I would not have derived it from “foot.”

And the Mishna continues the tzrichuta in the opposite direction as well: “And the mav'eh is not like the ox,”

and

its explanation is:

The tooth, which derives benefit from causing damage, is not like the foot, which derives no benefit from causing damage.

That is, the tooth has the stringency that it derives benefit from causing damage, whereas the foot does not have this stringency. Therefore, had the Torah not written “foot,” I would not have derived it from tooth.

But the Gemara challenges this interpretation as well:

“And what of the horn” [what did the tanna do with it]? That is, where did the tanna mention it? Would you say that he

What did the tanna do with it? In other words, where did the tanna mention it? Are we to say that he

“omitted it?!” [that the tanna indeed omitted it and did not mention it]?!

and indeed did not mention it?!

The Gemara answers that the tanna mentioned it by implication: The tanna taught later in the Mishna [9b], “

When it caused damage, the damager is liable

to pay compensation for the damage.” This is superfluous, except that the tanna came

to include the horn,

thereby including the horn.

But the Gemara challenges this resolution:

“Then let him teach

the horn

explicitly,

so that the tanna would teach the horn explicitly, just as he taught the foot and the tooth?!

And the Gemara answers:

“He is speaking of those that are forewarned from the outset.”

The tanna of our Mishna mentions only categories that are forewarned from the outset and pay full compensation for the damage. But

“those that are initially innocuous and ultimately forewarned,”

such as “horn,” where at first the goring ox is “innocuous” and pays only half-damages, and only after three gorings does it become forewarned,

“he is not speaking of.”

The tanna is not discussing this. Therefore, he did not mention it explicitly together with the other primary categories, but only by implication.

And now the Gemara returns to what it asked earlier, why Rav did not explain the Mishna in accordance with Shmuel, and asks in the opposite direction:

“And Shmuel,

who interprets “mav'eh” as the tooth,

why did he not say as Rav,

that “mav'eh” refers to a person?

And the Gemara answers:

“He can say to you,”

Shmuel:

“If it enters your mind

to interpret in accordance with Rav’s statement, that “mav'eh” refers to

a person,

then the following difficulty arises:

“The latter clause teaches,”

for the tanna mentions the human damager in the Mishna at the end of this chapter [15b], among the five “forewarned” categories that pay full compensation. The tanna lists there, among others,

a forewarned ox [

an ox that gored three times],

and an ox that causes damage in the domain of the injured party [

even an innocuous ox, if it gored in the domain of the injured party; this is in accordance with the view of Rabbi Tarfon, who holds that even an innocuous ox pays full compensation if it gored in the domain of the injured party],

and the person.

Since the tanna taught about the human damager in the latter clause, it necessarily follows that the mav'eh mentioned in the opening clause does not refer to a human damager.

But the Gemara still asks: Although the person is mentioned in the latter clause, nevertheless there remains a difficulty:

“Then let him teach it in the opening clause,”

so that the tanna would mention the human damager already in the opening clause, in the enumeration of the primary categories of damage [as according to Rav, for whom the tanna mentions it in the opening clause]?

The Gemara answers:

“He is speaking of monetary damages,”

the tanna of our Mishna speaks only of liability for damage caused by a person’s property, but

“of bodily damages,”

where he himself caused the damage,

“he is not speaking” [

he is not discussing this], and therefore the tanna did not mention the human damager in the opening clause.

And the Gemara asks again: What will Rav answer to Shmuel’s claim?

“And Rav,”

who holds that “mav'eh” refers to a person,

“also,”

what will he answer to Shmuel’s claim:

“The Mishna teaches ‘the person’ in the latter clause,”

and therefore, certainly the mav'eh mentioned in the opening clause does not refer to a person?

And the Gemara answers: In the opening clause, the tanna enumerated the person among the primary categories of damage for which one is liable, whereas

“that one,”

the fact that he mentioned him again in the latter clause,

“comes to count him together with the forewarned categories.”

The tanna comes to count him among the forewarned categories, which pay full compensation from the outset. And the Gemara asks how the tzrichuta of the Mishna is interpreted according to Rav:

“And what is the meaning of ‘The ox is not like

the mav'eh’” stated by the Mishna according to Rav, for whom the mav'eh refers to a person?

The Gemara answers:

“This is what he is saying:

The tanna is saying that had a person not been mentioned, we would not have derived his law from the ox, because

“the ox is not like,”

the ox has a stringency, for if a forewarned ox killed a person, the law is that

“its owner pays

the ransom,”

“whereas the person, who

if a person killed another person,

does not pay the ransom;

rather, if he killed intentionally, he is put to death, and if he killed unintentionally, he is exiled; but in every case he does not pay a ransom. Thus, we find a special stringency in the law of the ox over the law of a person: the ox pays the ransom, whereas a person is exempt from the ransom. Therefore, had the Mishna mentioned only an ox that causes damage, I would not have derived from it the law of a human damager, since with regard to the killing of a person by an ox, we find that the Torah was more stringent with the owner of the ox than with a person who killed another person.

And the Mishna returns to state the reverse as well: “And the mav'eh is not like the ox.” That is, had an ox not been mentioned, we would not have derived its law from the person, because

“the person, who is liable for four matters, is not like the ox, which is not subject to the four matters.”

When a person injures another, he must pay the injured party compensation for four matters: “pain” [payment for the pain], “medical costs” [payment for medical expenses], “loss of livelihood” [for inability to work], and “humiliation.” By contrast, when an ox injures a person, its owner is exempt from payment for all four of these matters. Thus, we find a stringency in the law of the human damager over the law of the ox. Therefore, had only the human damager been mentioned, we would not have derived from it the law of an ox that causes damage.

The Gemara raises a difficulty against Rav, who holds that “ox” includes every category of ox, from the continuation of the Mishna, for we learned in our Mishna:

“The common denominator among them” [

among the primary categories of damage that were mentioned]

“is that they are accustomed to cause damage.”

And if the ox mentioned in the Mishna refers also to the horn, it is difficult: Why did the Mishna say, “that they are accustomed to cause damage,”

“does an ox have a tendency to cause damage

by goring with its horn”?!

The Gemara answers: Our Mishna is speaking

of

an ox that is

forewarned.

But the Gemara asks:

“And

is an ox

that is forewarned accustomed

to cause damage

by goring?

And the Gemara answers:

“Yes

[indeed]

! Once it has become forewarned, that is its way.” [Once it has become forewarned, its way is henceforth to gore].

[Once it has become forewarned, it is now its normal way to gore.]

The Gemara returns and challenges Rav, who holds that mav'eh is a person: If so, the common denominator among them, that it is their way to cause damage, was also stated with regard to a person. But

is it a person's way to cause damage?!

The Gemara answers: The Mishna is speaking

of

a person who causes damage when he is

asleep.

The Gemara asks: But is it a person who is

asleep's way to cause damage?

The Gemara answers: Indeed,

since he bends and extends

his legs as he sleeps,

it is his usual manner,

and it is his way to damage the utensils located near him while he sleeps.

The Gemara continues and challenges Rav from the continuation of the Mishna, for we learned in our Mishna: The common denominator among them, etc.,

and their safeguarding is incumbent upon you.

This wording is appropriate only with regard to damage caused by a person's property, meaning that the responsibility for safeguarding them is incumbent upon you. But according to Rav, who holds that the Mishna also includes a person who causes damage, this wording is not appropriate, for

a person is responsible for safeguarding his own body

[and the tanna should have said, “your safeguarding is incumbent upon you,” in the second person].

In order to resolve the challenge, the Gemara argues that this challenge applies to the beraita as well, and that it is a challenge according to everyone:

But according to your reasoning,

according to the reasoning of you, the one who raised the challenge, who challenged Rav based on the wording of the Mishna and wished to prove the opinion of Shmuel, who holds that mav'eh is the tooth, your own words present a difficulty as well:

that which Karna taught

[the beraita that Karna taught]:

There are four primary categories of damage, and a person is one of them.

The beraita explicitly mentions a person among the four agents of damage, and this beraita too concludes like the Mishna: The common denominator among them, etc., and their safeguarding is incumbent upon you. If so, according to everyone there is a difficulty: Why was it stated, “and their safeguarding is incumbent upon you”? After all,

a person is responsible for safeguarding his own body?!

Rather,

we must necessarily resolve the beraita

as Rabbi Abbahu said to the tanna

[the one who taught this beraita]:

Teach

[you should teach the beraita as follows]:

A person is responsible for safeguarding his own body.

And the statement “and their safeguarding is incumbent upon you” refers only to the other primary categories of damage.