Babylonian Talmud: Tractate Baba Kamma

Folio 34a

Moreover, even where the goring had taken place before the debt was contracted, was not the creditor actually first [in taking possession of the ox]?¹  Can it be concluded from this that where a creditor of a subsequent date has preceded a creditor of an earlier date in distraining on [the property of the debtor], the distraint is of no legal avail?²  — No; I may still maintain that [in this case]³  the distraint holds good, whereas in the case there,⁴  it is altogether different; as the plaintiff [for damages] may argue,⁵  'Had the ox already been with you [before it gored], would I not have been entitled to distrain on it while in your hands? For surely out of the ox that did the damage I am to be compensated.'

Our Rabbis taught: Where an ox⁶  of the value of two hundred [zuz] gored an ox of the same value of two hundred [zuz] and injured it to the amount of fifty zuz, but it so happened that the injured ox [subsequently] improved and reached the value of four hundred zuz, since it can be contended that but for the injury it would have reached the value of eight hundred zuz, compensation will be [still] paid as at the time of the damage.⁷  Where it has depreciated, the compensation will be paid in accordance with the value at the time of the case being brought into Court.⁸  Where it was the ox which did the damage that [subsequently] improved, the compensation will still be made in accordance with the value at the time of the damage.⁹  Where it has [on the other hand] depreciated, the compensation will be made in accordance with the value at the time of the case being brought into Court.¹⁰

The Master has said: 'Where it was the ox which did the damage that [subsequently] improved, the compensation will still be made as at the time of the damage.' This ruling is in accordance with R. Ishmael, who maintains that the plaintiff is a creditor and he has a pecuniary claim against him [the defendant]. Read now the concluding clause: 'Where it [on the other hand] depreciated, the compensation will be made in accordance with the value at the time of the case being brought into Court'. This ruling, on the other hand, follows the view of R. Akiba, that they both [plaintiff and defendant] become the owners in common [of the ox that did the damage]. [Is it possible that] the first clause should follow the view of R. Ishmael and the second clause follow that of R. Akiba? — No; the whole teaching follows the view of R. Akiba, for we deal here with a case where the improvement was due to the defendant having fattened the ox.¹¹  If the improvement was due to fattening, how could you explain the opening clause, 'where … the injured ox [subsequently] improved and reached the value of four hundred zuz … compensation will be paid as at the time of the damage'? For where the improvement was due to the act of fattening [by the owner], what need could there have been to state [that compensation for the original damage has still to be paid]? — R. Papa thereupon said: The ruling in the opening clause¹²  applies to all cases, whether where the ox improved by special fattening or where it improved by itself: the statement of the rule was required for the case where the ox improved by itself — even then compensation will be paid as at time of the damage. The ruling in the concluding clause,¹³  however, could apply only to a case where the improvement was due to special fattening.

'Where it¹⁴  has depreciated, the compensation will be made in accordance with the value at the time of the case being brought into Court.' Through what can it have depreciated? Shall I say that it has depreciated through hard work? In that case [surely] the defendant can say, 'You cause it to depreciate!¹⁵  Could you expect me to pay for it?' — R. Ashi thereupon said: The depreciation [referred to] is due to the injury, in which case the plaintiff is entitled to contend, '[The evil effect of] the horn of your ox is still buried within the suffering animal.'¹⁶

MISHNAH. WHERE AN OX¹⁷  OF THE VALUE OF TWO HUNDRED [ZUZ] GORED AN OX OF THE SAME VALUE OF TWO HUNDRED [ZUZ] AND THE CARCASS HAD NO VALUE AT ALL, R. MEIR SAID THAT IT WAS WITH REFERENCE TO THIS CASE THAT IT IS WRITTEN, AND THEY SHALL SELL THE LIVE OX AND DIVIDE THE MONEY OF IT.¹⁸  R. JUDAH, HOWEVER, SAID: THIS IS CERTAINLY THE HALACHAH,¹⁹  BUT WHILE YOU FULFIL [BY THIS RULING THE INJUNCTION], 'AND THEY SHALL SELL THE LIVE OX AND DIVIDE THE MONEY OF IT,' YOU DO NOT FULFIL [THE NEXT INJUNCTION], 'AND THE DEAD OX ALSO THEY SHALL DIVIDE.'²⁰  THE CASE DEALT WITH BY SCRIPTURE IS THEREFORE WHERE AN OX OF THE VALUE OF TWO HUNDRED [ZUZ] GORED AN OX OF THE SAME VALUE OF TWO HUNDRED [ZUZ] AND THE CARCASS WAS WORTH FIFTY ZUZ: ONE PARTY WOULD HERE GET HALF OF THE LIVING OX TOGETHER WITH HALF OF THE DEAD OX²¹  AND THE OTHER PARTY WOULD SIMILARLY GET HALF OF THE LIVING OX TOGETHER WITH HALF OF THE DEAD OX.

GEMARA. Our Rabbis taught: Where an ox of the value of two hundred [zuz] gored an ox of the same value of two hundred [zuz] and the carcass was worth fifty zuz, one party would get half of the living ox together with half of the dead ox and the other party would similarly get half of the living ox together with half of the dead ox. This is the [case of the goring] ox dealt with in the Torah, according to the view of R. Judah. R. Meir, however, says; This is not the [case of the goring] ox dealt with in the Torah, but where an ox of the value of two hundred [zuz] gored an ox of the same value of two hundred [zuz] and the carcass was of no value at all — this is the case regarding which it is laid down, 'And they shall sell the live ox and divide the money of it.' But how could I [in this case] carry out [the other direction], 'And the dead ox also they shall divide'? [This only means that] the diminution [in value] brought about by the death²²  has to be [compensated] to the extent of one-half out of the body of the living ox. Now, since [in the former case]²³  according to both R. Meir and R. Judah one party will get a hundred and twenty-five [zuz]²⁴  and the other party will similarly get a hundred and twenty-five [zuz], what is the [practical] difference between them? — Raba thereupon said: The difference arises where²⁵  there has been a decrease in the value of the carcass,²⁶  R. Meir maintains that the loss in the value of the carcass has to be [wholly] sustained by the plaintiff,²⁷  whereas R. Judah is of the opinion that the loss in the value of the carcass will be borne by the defendant to the extent of a half.²⁸  Said Abaye to him:²⁹  If this be the case, will it not turn out that according to R. Judah

1. Why should then the plaintiff for damages override the right of another creditor who had already taken possession of the ox?
2. Whereas this is a point on which opinions differ; cf. Keth. 94a.
3. Dealing with two creditors for loans.
4. Where one of the creditors was a plaintiff for damages.
5. Against the other creditor.
6. In the state of Tam.
7. And the defendant cannot put up the increase in the value of the injured ox as a defence, for but for the injury the ox might have reached the value of even eight hundred zuz.
8. To the detriment of the defendant.
9. This view apparently maintains that the plaintiff does not become an owner of a definite portion in the ox that did the damage, but becomes entitled merely to a certain sum of money to be collected out of the body of that ox.
10. Seemingly because the plaintiff is according to this ruling regarded as having become at the time the goring took place an owner of a definite portion in the ox which has subsequently depreciated. For if he became entitled to a certain sum of money in the body of that ox, why should he suffer on account of depreciation?
11. In which case it is only reasonable that the plaintiff should not be entitled to any share in the improvement that resulted from the fattening carried out by the defendant.
12. Dealing with the case where it was the injured ox that improved and increased in value.
13. Giving the law where the ox that had done the damage improved.
14. I.e., the ox that had been injured, dealt with in the opening clause.
15. By hard work.
16. The depreciation is thus a direct result of the injury for which the defendant is responsible.
17. In the state of Tam.
18. Ex. XXI, 35.
19. That half-damages should be paid in the case of Tam.
20. As in the case specified by R. Meir the carcass had no value at all.
21. Amounting altogether to one hundred and twenty-five zuz. The plaintiff would thus get seventy-five zuz in respect of the damage that amounted to one hundred and fifty zuz. Together with the fifty of the carcass of his ox the sum total will be one hundred and twenty-five zuz.
22. Of the animal attacked resulting from the injuries inflicted upon it.
23. Specified by R. Judah, where the carcass was worth fifty zuz.
24. I.e., half of the value of the living ox and half of the value of the carcass.
25. Since the death of the attacked ox.
26. Before it has been sold.
27. As according to R. Meir, the defendant has no interest whatsoever in the carcass.
28. Since according to R. Judah, both the defendant and the plaintiff have to divide the value of the carcass.
29. Raba.

[injury by] Tam would involve a more severe penalty than [injury by] Mu'ad?¹  And should you maintain that this indeed is so,²  as we have learned: R. Judah says: In the case of Tam there is liability [where the precaution taken to control the ox has not been adequate] whereas in the case of Mu'ad there is no liability,³  it may be contended that you only heard R. Judah maintaining this with reference to precaution, which is specified in Scripture,⁴  but did you ever hear him say this regarding compensation? Moreover, it has been taught: R. Judah says: One might say that where an ox of the value of a maneh [a hundred zuz] gored an ox of the value of five sela' [i.e., twenty zuz] and the carcass was worth a sela' [i.e., four zuz], one party should get half of the living ox⁵  together with half of the dead ox⁶  and the other party should similarly get half of the living ox and half of the dead ox?⁷  [This cannot be so]; for we reason thus: Has Mu'ad been singled out⁸  to entail a more severe penalty or a more lenient one? You must surely say: [to entail] a more severe penalty. Now, if in the case of Mu'ad no payment is made but for the amount of the damage, should this not the more so be true in the case of Tam the [penalty in respect of which is] less severe?⁹  — R. Johanan therefore said: The practical difference between them¹⁰  arises where there has been an increase in the value of the carcass, one Master¹¹  maintaining that it will accrue to the plaintiff whereas the other Master holds that it will be shared equally [by the two parties].¹²

And it is just on account of this view that a difficulty was felt by R. Judah: Now that you say that the Divine Law is lenient to the defendant, allowing him to share in the increase [of the value of the carcass], you might then presume that where an ox of the value of five sela' [i.e. twenty zuz] gored an ox of the value of a maneh [a hundred zuz] and the carcass was valued at fifty zuz, one party would take half of the living ox¹³  together with half of the dead ox¹⁴  and the other party would similarly take half of the living ox and half of the dead ox?¹⁵  Say [this cannot be so, for] where could it elsewhere be found that an offender should [by order of the Court] be made to benefit as you would have the offender here in this case to benefit? It is moreover stated, He shall surely make restitution,¹⁶  [emphasising that] the offender could only have to pay but never to receive payment. Why that additional quotation?¹⁷  — [Otherwise] you might have thought this principle to be confined only to a case where the plaintiff was the loser,¹⁸  and that where no loss would be incurred to the plaintiff — as e.g. where an ox of the value of five sela' gored an ox similarly of the value of five sela' [i.e. twenty zuz] and it so happened that the carcass [increased in value and] reached the amount of thirty zuz — the defendant should indeed be entitled to share in the profit;¹⁸  hence the verse, He shall surely make full restitution, is adduced [to emphasise that in all cases] an offender could only have to pay but never to receive payment.

But R. Aha b. Tahlifa said to Raba: If so [that the principle to compensate by half for the decrease in value brought about by the death is maintained only by R. Meir], will it not be found that according to R. Judah Tam will involve the payment of more than half damages,¹⁹  whereas the Torah [emphatically] stated, And they shall sell the live ox and divide the money of it? — [No;] R. Judah also holds that the decrease in value brought about by the death will be [compensated] by half in the body of the living ox.²⁰  Whence could he derive this?²¹  — From [the verse], And the dead ox also they shall divide.²²  But did not R. Judah derive from this verse that one party will take half of the living ox together with half of the dead ox and the other party will similarly take half of the living ox and half of the dead ox?²³  — If that were all, the text could have run, 'And the dead ox [they shall divide].' Why insert 'also'? It shows that two lessons are to be derived from the verse.²⁴

MISHNAH. THERE ARE CASES WHERE THERE IS LIABILITY FOR OFFENCES COMMITTED BY ONE'S CATTLE²⁵  THOUGH THERE WOULD BE NO LIABILITY SHOULD THESE OFFENCES BE COMMITTED BY ONESELF. THERE ARE, AGAIN, CASES WHERE THERE IS NO LIABILITY FOR OFFENCES COMMITTED BY ONE'S CATTLE²⁵  THOUGH THERE WOULD BE LIABILITY WERE THESE OFFENCES COMMITTED BY ONESELF. FOR INSTANCE, IF CATTLE HAS BROUGHT INDIGNITY [UPON A HUMAN BEING] THERE IS NO LIABILITY,²⁶  WHEREAS IF THE OWNER CAUSES THE INDIGNITY THERE WOULD BE LIABILITY.²⁷  SO ALSO IF AN OX PUTS OUT THE EYE OF THE OWNER'S SLAVE OR KNOCKS OUT HIS TOOTH THERE IS NO LIABILITY,²⁸  WHEREAS IF THE OWNER HIMSELF HAS PUT OUT THE EYE OF HIS SLAVE OR KNOCKED OUT HIS TOOTH HE WOULD BE LIABLE [TO LET HIM GO FREE].²⁹  AGAIN, IF AN OX HAS INJURED THE FATHER OR MOTHER OF THE OWNER THERE IS LIABILITY,³⁰  THOUGH WERE THE OWNER HIMSELF TO INJURE HIS FATHER OR HIS MOTHER³¹  THERE WOULD BE NO [CIVIL] LIABILITY.³²  SO ALSO WHERE CATTLE HAS CAUSED FIRE TO BE SET TO A BARN ON THE DAY OF SABBATH THERE IS LIABILITY,³⁰  WHEREAS WERE THE OWNER TO SET FIRE TO A BARN ON SABBATH³³  THERE WOULD BE NO [CIVIL] LIABILITY, AS HE WOULD BE SUBJECT TO A CAPITAL CHARGE.³²

GEMARA. R. Abbahu recited in the presence of R. Johanan:³⁴  Any work [on the Sabbath] that has a destructive purpose entails no penalty [for the violation of the Sabbath], with the exception, however, of the act of inflicting a bodily injury, as also of the act of setting on fire. Said R. Johanan to him: Go and recite this outside³⁵  [for the exception made of] the act of inflicting a bodily injury and of setting on fire is not part of the teaching; and should you find grounds for maintaining that it is,³⁶  [you may say that] the infliction of a bodily injury refers to where the blood was required to feed a dog;³⁷  and in the case of setting on fire, where there was some need of the ashes.³⁷

We have learnt: WHERE CATTLE HAS CAUSED FIRE TO BE SET TO A BARN ON THE DAY OF SABBATH THERE IS LIABILITY, WHEREAS WERE THE OWNER TO HAVE SET FIRE TO A BARN ON SABBATH THERE WOULD BE NO [CIVIL] LIABILITY. Now, the act of the owner is here placed on a level with that of Cattle; which would show, would it not, that just as in the act of Cattle there was certainly no intention to satisfy any need,

1. For in the case of Mu'ad it is certainly the plaintiff who has to bear the whole loss occasioned by a decrease in the value of the carcass; cf. supra p. 65.
2. And Tam will indeed involve a penalty more severe than that involved by Mu'ad.
3. B.K. IV, 9.
4. For which cf. infra, p. 259.
5. Amounting to fifty zuz.
6. That would amount to another ten zuz.
7. The result would be that the plaintiff whose injured ox had altogether been worth twenty zuz would get damages amounting to sixty zuz.
8. In Scripture; cf. Ex. XXI, 36.
9. Why should then the defendant in the case of Tam share the loss occasioned by a decrease in the value of the carcass which he would not have to do in the case of Mu'ad?
10. R. Meir and R. Judah.
11. R. Meir, according to whom the defendant has no interest in the carcass.
12. V. supra p. 189, n. 7.
13. Amounting to ten zuz.
14. That would amount to another twenty-five zuz.
15. The result would be that the defendant instead of paying compensation would make a profit out of the offence, as in lieu of his ox which did the damage and which was worth twenty zuz he would get a total of thirty-five zuz.
16. Ex. XXI, 36.
17. I.e., why is not the first objection sufficient?
18. Of the ten zuz that make the carcass worth more than the ox while alive.
19. As e.g.. where an ox of the value of fifty zuz gored another's ox of the value of forty zuz and the carcass was worth twenty zuz, in which case the actual damage amounted to twenty zuz, half of which would be ten zuz, whereas if the plaintiff will get half of the living ox and half of the dead ox he shall be in receipt for damages, in addition to the value of the carcass, not of ten but of fifteen zuz.
20. The sum total received by the plaintiff will therefore never be more than half of the actual loss sustained by him after allowing him, of course, the full value of the carcass of his ox.
21. Since he is in disagreement with R. Meir as to the implication of the last clause of Ex. XXI, 35.
22. Ex. XXI, 35.
23. I.e., that the decrease in value brought about by the death will be compensated for by half in the body of the living ox. V. Supra p. 189.
24. Viz., the principle laid down in the preceding note and the principle maintained by R. Judah, that the defendant as well as the plaintiff has an interest in the carcass and will share the profits of any increase in its value.
25. Lit., 'ox'.
26. As explained supra p. 134.
27. Cf. B. K. VIII 1-2.
28. To the law laid down in Ex. XXI, 26-27.
29. In accordance with ibid, cf. also supra p. 137.
30. For damages.
31. Involving thus a capital charge, for which cf Ex. XXI, 15.
32. As wherever a capital charge is involved by an offence, all civil liabilities that may otherwise have resulted from that offence merge in the capital charge; cf. supra p. 113.
33. For which cf. Ex. XXXI, 14-15; but v. also ibid. XXXV, 2-3, Mekilta a.l. and Yeb. 7b, 33b and Shab. 70a.
34. Cf. Shab. 106a.
35. [I.e., your teaching is fit only for outside and not to be admitted within the Beth Hamidrash; v. Sanh. (Sonc. ed.) p. 425.]
36. Cf. Shab. 75a; v. also B.K. VIII, 5.
37. Which case involves the violation of the Sabbath because the purpose has not been altogether destructive.