Babylonian Talmud: Tractate Baba Kamma

Folio 41a

that the execution amounted to manslaughter on the part of the animal; we are therefore told [that this is not the case]. Raba on the other hand held that [we deal here with a case where] while copulating with a woman the animal did kill her, and as for the objection what difference could be made between killing committed by means of horns and killing committed by means of copulating, [the answer would be that] in the case of Horn the animal purposes to do damage, whereas in this case [of copulating] the intention of the animal is merely for self-gratification. What is the point at issue [between these two explanations]?¹  — [Whether kofer should be paid] in the case of Foot treading upon a child in the premises of the plaintiff [and killing it].²  According to Abaye there would be liability to pay kofer, whereas according to Raba no payment of kofer would have to be made.³

It was taught in accordance with the view of Rab: An ox trained for the arena [that killed a person] is not liable [to be stoned] to death, and is eligible for the altar, for it had been compelled [to commit the manslaughter].

MISHNAH. IF AN OX GORES A MAN AND DEATH RESULTS, IN THE CASE OF MU'AD THERE IS LIABILITY TO PAY KOFER,⁴  BUT IN THE CASE OF TAM, THERE IS NO LIABILITY TO PAY KOFER. IN BOTH CASES, HOWEVER, THE OXEN ARE LIABLE [TO BE STONED] TO DEATH.⁵  THE SAME [JUDGMENT APPLIES] IN THE CASE OF A [MINOR] SON AND THE SAME [JUDGMENT APPLIES] IN THE CASE OF A [MINOR] DAUGHTER.⁶  BUT WHERE THE OX HAS GORED A MANSERVANT OR A MAIDSERVANT [AND DEATH HAS RESULTED], COMPENSATION HAS TO BE GIVEN TO THE AMOUNT OF THIRTY SELA',⁷  WHETHER THE KILLED SERVANT WAS WORTH A HUNDRED MANEH⁸  OR NOT WORTH ANY MORE THAN ONE DENAR.⁹

GEMARA. But since when it was still the state of Tam it had to be killed [for manslaughter], how could it ever have been possible to declare it Mu'ad? — Rabbah said: We are dealing here with a case where, e.g. it had been estimated that it¹⁰  might have killed three¹¹  human beings.¹²  R. Ashi, however, said that such estimation amount to nothing,¹³  and that we are therefore dealing here with a case where the ox gored and endangered the lives of three human beings.¹⁴  R. Zebid [on the other hand] said: [The case is one] where, for instance, it killed three animals.¹⁵  But is an ox [which has been declared] Mu'ad to kill animals also Mu'ad to kill men?¹⁶  — R. Shimi therefore said: [The case is one] where for instance it killed three heathens.¹⁵  But is an ox [which has been declared] Mu'ad to gore persons who are heathens also Mu'ad with reference to those who are Israelites? — R. Simeon b. Lakish therefore said: [The case is one] where, for instance, it killed three persons who had already been afflicted with fatal organic diseases.¹⁵  But is an ox [which has been declared] Mu'ad with reference to persons afflicted with fatal organic diseases also Mu'ad regarding persons in sound condition? — R. Papa therefore said: [The case is one where] the ox [on the first occasion] killed [a sound person] but escaped to the pasture,¹⁷  killed again [a sound person] but similarly escaped to the pasture. R. Aha the son of R. Ika said: [The case is one] where, for instance, [two witnesses alleged in every case an alibi against the three pairs of witnesses who had testified to the first three occasions of goring,¹⁷  and] it so happened that [after evidence had been given regarding the fourth time of goring the accusation of the alibi with reference to the first three times of goring fell to the ground as] a new pair of witnesses gave evidence of an alibi against the same two witnesses who alleged the alibi [against the three sets of witnesses who had testified to the first three occasions of goring]. Now this explanation would be satisfactory [if the three days required for] the declaration of Mu'ad refer to [the goring of] the ox¹⁸  [so as to make sure that it has an ingrained tendency].¹⁹  But if the three days are needed to warn the owner,¹⁸  why should he not plead [against the plaintiff], 'I was not aware [that the evidence as to the first three gorings was genuine]'? — [This could not be pleaded where] e.g., it was stated [by the very last pair of witnesses] that whenever the ox had [gored and] killed he²⁰  had been present [and witnessed every occasion]. — Rabina said: [The case of an ox not being stoned after any of the first three fatal gorings might be] where, though recognising the owner of the ox²⁰  [the witnesses who testified to the first three time of goring] did not at that time recognise the identity of the ox [also].¹⁷  But what could the owner²⁰  have done [where the ox that gored and killed had not been identified]?²¹  — [He is culpable because] they could say to him: 'Knowing that an ox inclined to gore has been among your herd, you ought to have guarded the whole of your herd.'

IN BOTH CASES, HOWEVER, THE OXEN ARE LIABLE [TO BE STONED] TO DEATH. Our Rabbis taught: From the implication of the statement The ox shall be surely stoned²²  would I not have known that it becomes nebelah²³  and that by becoming nebelah it should be forbidden to be consumed for food?²⁴  Why then was it necessary to state further And his flesh shall not be eaten?²⁵  Scripture must therefore have intended to tell us that were the ox to be slaughtered after the sentence has been passed upon it, it would be forbidden to be consumed as food. This rule is thus established as regards food; whence could it be derived that it would also be forbidden for any [other] use whatsoever? The text therefore says, But the owner of the ox shall be quit.²⁵  How does this bear [on the matter in hand]? — Simeon B. Zoma said: [The word 'quit' is used here] as in [the colloquial expression,] So-and-so went out quit from his possessions without having any benefit of them whatsoever.

But how do we know that 'his flesh shall not be eaten' refers to a case where the ox has been slaughtered after the sentence had been passed on it, to indicate that it should be forbidden to be used as food? Why not rather suppose that where it has been slaughtered after the sentence had been passed on it, the ox would be eligible to be used for food, and take the words 'his flesh shall not be eaten' as referring to a case where the ox had already been stoned, and indicating that it should [then] be forbidden for any use whatsoever?²⁶  Such an implication is even in conformity with the view of R. Abbahu, for R. Abbahu said on behalf of R. Eleazar:²⁷  Wherever Scripture says either it shall not be eaten²⁸  or thou shalt not eat²⁹  or you shall not eat,³⁰  a prohibition both in respect of food and in respect of any [other] use is implied, unless where Scripture makes an explicit exception, as it did make an exception in the case of a thing that dies of itself, which may be given unto a stranger or sold unto a heathen!²⁴  — It may, however, be argued against this that these words [of R. Abbahu] hold good only where the prohibition both in respect of food and in respect of any [other] use is derived from the one Scriptural text, [viz.,] 'it shall not be eaten', but here where the prohibition in respect of food is derived from '[the ox] shall be surely stoned', should you suggest that [the words] 'his flesh shall not be eaten' were meant as a prohibition for any use, [we may ask] why then did the Divine Law not plainly state 'No benefit shall be derived from it'? Or again, why not merely say, 'It shall not be eaten'? Why [the additional words] 'his flesh', if not to indicate that even where it had been made and prepared to resemble other meat, as where the ox was slaughtered, it should still be forbidden. Mar Zutra strongly demurred to this: Why not [he said] take this prohibition

1. Given by Abaye and Raba respectively.
2. Discussed supra p. 134.
3. Since the intention of the animal was not to do damage.
4. Ex. XXI, 30.
5. Ibid. 28-29.
6. Ibid. 31
7. Ibid. 32.
8. V. Glos.
9. V. Glos.
10. The ox.
11. As Mu'ad could be only on the fourth occasion; cf. however Rashi a.l.; also Tosaf. a.l. and supra p. 119.
12. Whom the ox pursued but who had a very narrow escape from death by running away to a safe place.
13. Since no actual goring took place.
14. Who, however, did not die until after the ox gored again on the fourth occasion, and it was on account of this delay that the ox was not stoned previously.
15. In which case the ox should not be put to death.
16. Cf. supra p. 4, and p. 205.
17. The ox thus escaped death.
18. Cf. supra p. 121.
19. As in this case also the first three times of goring took place on three successive days.
20. I.e. the defendant.
21. How then could this be called warning?
22. Ex. XXI. 28.
23. I.e.. the carcass of an animal not ritually slaughtered.
24. In accordance with Deut XIV, 21.
25. V. p. 233, n. 6.
26. For without this implication it would have followed the general rule that an animal which was not slaughtered in accordance with the requirements of the law could be used for any purpose but food; cf. Deut. XIV, 21 and Lev. VII, 24.
27. Pes. 21b; Kid. 56b.
28. Such e.g. as in Ex. XIII, 3.
29. See Lev. XVII, 12 but also Pes. 22a.
30. Cf. e.g., Gen. XXXII, 33 and Pes. 22a and Hul. 100b.

to refer to a case where the slaughterer prepared¹  a piece of sharp flint and with it slaughtered the ox, which was thus dealt with as if it has been stoned, whereas where it had been slaughtered by means of a knife the prohibition should not apply? — To this it may be replied: Is a knife specifically mentioned in Scripture? Moreover we have learnt:²  If one slaughters with a hand-sickle, with a flint or with a reed, the act of slaughtering has been properly executed.²

And now that the prohibition in respect both of food and of any [other] use has been derived from [the text] 'his flesh shall not be eaten', what additional teaching is afforded to me by [the words] 'The owner of the ox shall be quit'? — [The prohibition of] the use of the skin. For otherwise you might have been inclined to think that it was only the flesh that had been proscribed from being used, whereas the skin should be permitted to be used; we are therefore told [that this is not the case but] that 'the owner of the ox shall be quit.' But what of those Tannaim who employ this [text], 'The owner of the ox shall be quit' for deriving other implications (as we will indeed have to explain infra);³  whence do they derive the prohibition against the making use of the skin? — They derive it from [the auxiliary term in the Hebrew text] 'eth his flesh', meaning, 'together with that which is joined to its flesh', that is, its skin. This Tanna,⁴  however, does not stress [the term] 'eth' for legal expositions, as it has been taught:⁵  Simeon the Imsonite, or as others read, Nehemiah the Imsonite, used to expound [the term] 'eth'⁶  wherever it occurred in the Torah. When, however, he reached, Thou shalt fear eth the Lord thy God,⁷  he abstained.⁸  His disciples said to him: Rabbi, what is to be done with all the expositions of [the term] 'eth' which you have already given?⁶  He said to them: Just as I have received reward for the [previous] expositions so have I received reward for the [present] abstention. When R. Akiba, however, came, he taught: 'Thou shalt fear eth the Lord thy God' implies that the scholarly disciples are also to be feared.

Our Rabbis taught: 'But the owner of the ox shall be quit' means, according to the view of R. Eliezer, quit from [paying] half kofer.⁹  Said R. Akiba to him: Since any actual liability in the case of the ox itself [being a Tam] is not paid except out of its body,¹⁰  [why cannot the owner say to the plaintiff,] 'Bring it to the Court of Law and be reimbursed out of it'?¹¹  R. Eliezer then said to him: 'Do I really appear so [simple] in your eyes that [you should take] my exposition to refer to a case of an ox liable [to be stoned] to death? My exposition referred only to one who killed the human being in the presence of one witness or in the presence of its owner.'¹²  In the presence of its owner! Would he not be admitting a penal liability?¹³  — R. Eliezer maintains that kofer partakes of a propitiatory character.¹⁴

Another [Baraitha] teaches: R. Eliezer said to him: Akiba, do I really appear so [simple] in your eyes that [you take] my exposition to refer to an ox liable [to be stoned] to death? My exposition referred only to one who had been intending to kill a beast but [by accident] killed a man, [or where it had been intending to kill] an Egyptian and killed an Israelite, [or] a non-viable child and killed a viable child.¹⁵  Which of the answers, was given first? — R. Kahana in the name of Raba said that [the answer about] intention was given first, whereas R. Tabyomi in the name of Raba said that [the answer about] having killed [the man in the presence of one witness etc.] was given first. R. Kahana, who in the name of Raba said [that the answer about] intention was given first, compared him to a fisherman who had been catching fishes in the sea;

1. Lit., 'tested', that is, to see whether it was fit for ritual slaughtering.
2. Hul. 15b.
3. V. pp. 236-239.
4. Who needs the whole of the text to imply the prohibition of the skin.
5. Kid. 57a; Bek. 6b and Pes 22b.
6. To imply some amplification of the statement actually made.
7. Deut VI. 13
8. Being loth to put any being whatsoever on a par with God.
9. In the case of Tam.
10. As supra p. 73.
11. But since the ox is put to death and the carcass including also the skin is proscribed for any use whatsoever, is it not evident that no payment could be made in the case of Tam killing a human being? Why then give a special indication to this effect?
12. [In which case the ox is not stoned (v. Zeb. 71a: Rashi and Tosaf. s.v. [H]).]
13. For the payment of half-damages in the case of Tam is, as decided supra p. 67 of a penal character and as such liability for it could in any case not be established by the admission of the defendant, for which cf. supra p. 62 and infra p. 429.
14. And liability to it would thus have been established even by the admission of the defendant.
15. V. supra p. 232. n. 11.