Masechet Bava Kamma 33a-39b

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29 Jan 2009

The Coming Week’s Daf Yomi by Rabbi Adin Steinsaltz

This essay is based upon the insights and chidushim (original ideas) of Talmudic scholar Rabbi Adin Steinsaltz, as published in the Hebrew version of the Steinsaltz Edition of the Talmud.

Bava Kamma 33a-b

We have learned that in the event that a shor tam – an ox with no violent history – gores another animal, its owner will pay chatzi nezek mi-gufo – half of the value of the damage that was done, but no more than the value of the shor tam itself. The Mishnah on our daf teaches that if the shor tam was worth a maneh (100 dinarim) and it killed an ox that was worth 200 dinarim, the owner of the dead animal will simply take the shor tam as his own (since its value is half of the damage that it caused).

The Gemara identifies the author of this Mishnah as Rabbi Akiva, who believes that in a case where both sides agree to the details of what took place, there is no need to involve the courts in the matter, since the law is clear and the two parties can work it out between them. Rabbi Yishmael disagrees, arguing that only the bet din – the court – can decide the value of the two animals and declare how much must be paid. The Gemara explains that while Rabbi Yishmael believes that the accident creates a monetary obligation for the owner of the damaging ox to pay, Rabbi Akiva believes that the accident automatically gives the owner of the ox that was injured a part ownership (or in this case, full ownership) in the shor tam that gored.

In response to the Gemara’s request for a practical difference between these two positions, the case that is raised is a situation where the owner of the dead animal were to state that he was consecrating the shor tam to the Temple. According to Rabbi Yishmael his statement is meaningless, since the animal does not belong to him; according to Rabbi Akiva the hekdesh will take effect.

According to the Rashba, shor tam is a very unique case, since the half damages paid by the owner of a shor tam is considered a kenas – a penalty – and Jewish law frees a person from paying kenas if he steps forward on his own and admits to responsibility. Thus, Rabbi Akiva’s ruling is difficult to understand, since if the owner of the shor tam admits to his guilt, the shor tam will not transfer to the damaged party. Apparently in the case of shor tam, since the payment is actually less than the value of the damage that was done, we do not apply the rule of modeh be-kenas patur (that someone who admits his responsibility is free from his obligation to pay).

Bava Kamma 34a-b

Our Mishnah deals with the application of the laws of a shor tam – an ox with no known violent tendencies. The Torah teaches (Shemot 21:35) that when an ox gores another ox and kills it, both the live animal and the dead one are sold and their value is divided between the owner of the ox that did the damage (the mazik) and the owner of the ox that was killed (the nizak). This is the source for the idea that we have already seen, that a shor tam pays chatzi nezek mi-gufo – half of the damage that it did, but not more than its own value.

The Mishnah illustrates this law with the following example:
If an ox that is worth 200 gores an ox that is also worth 200, and the carcass of the dead animal has no value, both the mazik and the nizak will receive 100 – half the value of the shor tam that gored. Rabbi Meir comments that this is the archetypical case discussed in the Torah (Shemot 21:35). Rabbi Yehuda objects that in this case we divide the value of the animal that gored, but not of the dead animal. According to Rabbi Yehuda, the archetypical case is one where the goring ox was worth 200 and the ox that was killed was worth 200, and the carcass was worth 50. In this case, each party would receive 125, according to the Torah’s rules.

The Gemara asks why Rabbi Meir and Rabbi Yehuda argue – after all they are both in agreement that the mazik and nizak would each receive 125 in Rabbi Yehuda’s case. Rava suggests that the difference is who would lose out in a situation of pechat neveilah – where the value of the carcass becomes worth less over time. According to Rabbi Meir, the carcass belongs to its original owner, and if it loses value, the loss is his. Rabbi Yehuda believes that the two parties become partners in both animals, and if the value of the carcass drops, they will share the loss.

When an animal is killed, the value of the carcass is established based on the price of the (non-kosher) meat and the animal’s hide. As time passes and the natural processes of decomposition set in, the value of the animal will drop. The difference in value from the time of death to the time that the animal is sold is what the Gemara refers to as pechat neveilah.

Bava Kamma 35a-b

Ha-motzi me-chaveiro, alav ha-ra’ayah – in colloquial English we would say “possession is nine-tenths of the law.” According to the halacha, if you want to make a claim on someone else, you will have to prove that you are right. This is the underlying message of our Mishnah.

One example of this rule in our Mishnah is a case where one ox was chasing another, and the second ox became injured. The owner of the injured animal claims that the injury was caused by the first ox; the owner of that animal claims that the second ox became injured on a rock. Ha-motzi me- chaveiro, alav ha-ra’ayah – we will only make the owner of the first animal pay if the second one can bring witnesses that the injury was done by the first ox.

From Rashi‘s explanation of this case it appears that the claim that the second ox’s injury came from a rock means that the owner of the first animal denies any involvement in the accident, arguing that the injured animal simply rubbed against a rock and hurt itself. If, however, the animal became injured because it was running away from the first ox, the owner of the first ox would have some level of responsibility for the injury. The Rashba disagrees and says that the owner of the first ox will only be held responsible if his ox actually gored the second one, but if the second ox became injured on a rock while running away from the first ox, the owner would not be responsible. This is because the ox would only be considered a case of gerama be-nezikin – a distant source of damage, not a direct one, and gerama be-nezikin is patur (he is not responsible).

Bava Kamma 36a-b

Our Gemara quotes a Mishnah that rules that if someone slaps his friend, and he remains uninjured, he is obligated to pay him a sela because of the embarrassment that he caused.

When such a case was brought before Rav Yosef, he ruled that it was to be paid from kesef medina – a coin of lesser value. Upon hearing this, the man who had been slapped announced that he had no desire to accept such a small payment, and that he preferred that it be given to charity. Afterwards he changed his mind and requested that the money be given to him. Rav Yosef responded that he could no longer change his mind, since the bet din – the Jewish court – which represented the poor, had already taken it on their behalf.

The rishonim ask why it was necessary for Rav Yosef to give this ruling – in any case the man had accepted upon himself to distribute money to the poor and would be obligated to do so. The Ri”f and Tosafot say that his original statement did not obligate him, since he was promising money that did not yet belong to him. Rabbeinu Chananel suggests that the man was not reneging on his original promise, he simply changed his mind about giving that specific coin to the poor – he planned to give other money instead. Rav Yosef told him that he could not make even that small change.

Generally speaking, during the time of the Talmud there were two types of coins. Matbe’ah tzuri was a silver-based coin that was viewed as being biblical money. Kesef medina were coins that had the same names as the more valuable matbe’ah tzuri, but were made of cheaper metals and were worth one-eighth the value of kesef tzuri. Different values for coins with identical names were not uncommon in the ancient world and this phenomenon still exists in some places today, where paper money may have the same name as a gold coin, for example, but is worth significantly less. It is therefore essential to determine which coin is being discussed.

Bava Kamma 37a-b

Up to this point we have differentiated between a shor tam and a shor mu’ad by describing the former as an ox without a violent history and the latter as an ox that has gored on at least three occasions. As the Mishnah on today’s daf makes clear, the reality is quite a bit more complicated. According to the Mishnah, an ox can be considered mu’ad with regard to other oxen, even though it is not mu’ad for other animals. Similarly, it may be mu’ad for people, but not for animals. The Mishnah even relates that Rabbi Yehuda ruled that an ox that shows violent tendencies only on Shabbat will be considered mu’ad for Shabbat, but not for the rest of the week.

Why would the halacha make these distinctions?

Generally speaking, non-predatory animals are not attackers by their nature, and will not purposefully injure animals of a different type. When they do attack and injure, it is usually when they are in heat during mating season or to establish an area that they control. Thus, domesticated animals are ordinarily viewed as mu’ad only to animal of the same species, and only rarely will they be mu’ad towards other types of animals.

Regarding animals that are considered mu’ad only on Shabbat, the Talmud Yerushalmi explains that people dress differently on Shabbat, and an ox may not recognize the people around him, which may lead it to violence. (Tosafot Rabbeinu Peretz points out that according to this approach, this rule would apply only to an ox who is mu’ad to gore people, but not to one whose violence is directed at animals.) Rashi explains that since the ox is not working on Shabbat, it is the only day on which the animal is not tethered to something, and the freedom that it has may lead it to out-of-the ordinary acts of violence.

Bava Kamma 38a-b

How does Jewish law treat cases of torts (“a wrongful act, whether intentional or negligent, which causes an injury and can be remedied at civil law, usually through awarding damages”) between Jews and non-Jews?

Somewhat surprisingly, the Mishnah (37b) rules that if the ox of a Jew gored the ox of a non-Jew, he will not have to pay, but if the ox of a non-Jew gored the ox of a Jew, we will make him pay full damages, whether the ox was a tam or a mu’ad (i.e. whether or not the ox had a history of violence).

The Gemara is disturbed by this unfair ruling, and it demands an explanation – after all either the passage that teaches these laws applies them to all cases, or else it applies them only to interactions between Jews (as is the simple understanding of the term re’ehu in Shemot 21:35-36). How can it be applied selectively in an unfair manner!?

In response to this question, the Gemara brings statements from a number of Talmudic sages who agree that because the non-Jewish world did not follow the seven Noachide commandments, Jewish law “permitted their wealth.” Tosafot point out this certainly does not mean that according to halacha Jews are allowed to steal from non-Jews, rather in cases like this one, we do not make the Jewish owner of a damaging ox pay restitution. The Me’iri reiterates a position that he states in a number of places, that this ruling applies only to non-Jews who do not behave in a civilized manner, but when Jews live in places that have established courts and civil society, such a rule would not apply. Furthermore, other rishonim offered additional reasons to explain the reasoning behind this halacha. The Rambam, for example writes that this ruling stems from the fact that non-Jewish law did not require any payment for such damage, so we accept that and do not require Jews to pay; since non-Jews do not guard their animals properly, we punish them by making them pay full damages.

The Gemara concludes that when the Roman government sent scholars to the Sages and demanded that they be taught the Torah, upon completing their course of study those representatives stated that the entire Torah is true, aside from this halacha that forces the non-Jew to pay in full but frees the Jew entirely. Nevertheless, they promised that they would not share this ruling with the government.

Bava Kamma 39a-b

In certain situations where a person cannot fend for himself, Jewish law appoints an apotropus – a legal guardian – who accepts the responsibility of looking out for the person’s interests. The Mishnah on our daf discusses the case of an ox that belonged to a heresh, shotah ve-katan – a deaf-mute, an imbecile or a child, all of whom are perceived as unable to take care of their own affairs. According to Rava‘s explanation of the Mishnah, owners like those will not be held responsible for damage done by the ox, but if the ox is found to be violent, then an apotropus will be appointed by the courts so that witnesses can come forward and testify about the ox so that it will be considered a mu’ad – a violent animal – whose owners will be made to pay for damage that it causes.

It appears, however, that until it becomes clear that there is a problem with the animal, the court will not appoint an apotropus. Many reasons are offered for this by the rishonim.

Rashi brings a number of explanations. First he suggests that the half-payment made by a shor tam (an animal with no history of violence) is considered a kenas – a penalty – and not true restitution, and we have no interest in punishing these types of people by making them pay kenas. For a variety of reasons Rashi rejects that explanation and explains that the problem stems from the fact that payment from a shor tam is mi-gufo – it is limited to the value of the animal itself. Since the courts do not allow collection from moveable objects belonging to orphans, they cannot collect from a shor tam.

The Ra’avad offers a different approach, saying that the orphans need the ox for work in the field and exacting payment from it would be considered a hefsed merubeh – a great loss – which we will not be willing to inflict on them. According to Tosafot, the reason is lodged in the very definition of the rules of a shor tam. A shor tam pays only half damages because the Torah was lenient with someone who had no way of knowing that his animal might attack another. In the case of orphans – or others that cannot watch their property properly – we extend that leniency and ensure that they will not be forced to pay.

In addition to his monumental translation and commentary on the Talmud, Rabbi Steinsaltz has authored dozens of books and hundreds of articles on a variety of topics, both Jewish and secular. For more information about Rabbi Steinsaltz’s groundbreaking work in Jewish education, visit or contact the Aleph Society at 212-840-1166.

The words of this author reflect his/her own opinions and do not necessarily represent the official position of the Orthodox Union.