Bava Kamma 15

בני חורין ובני ברית בני חורין למעוטי עבדים בני ברית למעוטי גוים

free men and members of the covenant. The mishna states: Free men, to exclude Canaanite slaves from being valid witnesses, and it states: Members of the covenant, to exclude gentiles.

וצריכא דאי אשמעינן עבד משום דאין לו יחס אבל גוי דיש לו יחס אימא לא ואי אשמעינן גוי משום דלא שייך במצות אבל עבד דשייך במצות אימא לא צריכא

The Gemara notes: And it is necessary to teach both exceptions, as had the Torah taught us only about a slave, I might have presumed that he is disqualified from serving as a witness because he has no lineage, i.e., the child of a Canaanite slave is not legally considered to be his child in any sense; but a free gentile, who has lineage, I might say no, he is qualified. And similarly, had the Torah taught us only about a gentile, I might have presumed that he is disqualified from serving as a witness because he has no connection to the mitzvot of the Torah; but with regard to a Canaanite slave, who does have a connection to the mitzvot, as he is obligated to keep the mitzvot that a woman is obligated to keep, I might say no, he is qualified. Therefore, it is necessary to teach both exceptions.

והנשים בכלל הנזק מנהני מילי

§ The mishna continues: And women are included in the halakhot of damages in the same way as men. The Gemara asks: From where is this matter derived?

אמר רב יהודה אמר רב וכן תנא דבי רבי ישמעאל אמר קרא איש או אשה כי יעשו מכל חטאת השוה הכתוב אשה לאיש לכל עונשין שבתורה

The Gemara presents three sources for this halakha. Rav Yehuda says that Rav says, and similarly, the school of Rabbi Yishmael taught: The verse states with regard to the liability of one who takes a false oath that he had not stolen: “When a man or woman shall commit any of the sins of a person” (Numbers 5:6). The verse equates a woman with a man with regard to all punishments in the Torah.

דבי רבי אלעזר תנא ואלה המשפטים אשר תשים לפניהם השוה הכתוב אשה לאיש לכל דינין שבתורה

The school of Rabbi Elazar taught: The verse states with regard to the civil laws given following the revelation at Sinai: “And these are the civil laws that you shall set before them” (Exodus 21:1). The reference to “them” in the verse is referring to all those who stood at the revelation, both men and women. The verse thereby equates a woman with a man with regard to all civil laws in the Torah.

דבי חזקיה ורבי יוסי הגלילי תנא אמר קרא והמית איש או אשה השוה הכתוב אשה לאיש לכל מיתות שבתורה

The school of Ḥizkiyya and Rabbi Yosei HaGelili taught: The verse states with regard to liability in a case where one’s ox kills a person: “And it killed a man or a woman” (Exodus 21:29). The verse thereby equates a woman with a man with regard to all killings in the Torah, i.e., the liability incurred is the same whether the person killed was a man or a woman.

וצריכי דאי אשמעינן קמייתא התם הוא דחס רחמנא עלה כי היכי דתהוי לה כפרה אבל דינין איש דבר משא ומתן אין אשה לא

The Gemara notes: And all three sources are necessary, as had the Torah taught us only the first source, one might have said that it is there that men and women are equated, as the Merciful One had pity upon a woman and made her liable in order that she should achieve atonement through paying restitution. But with regard to civil law, one might say that for a man, who is involved in business dealings, yes, the civil laws apply to him, but to a woman, who generally is not involved in business dealings, the laws do not apply.

ואי אשמעינן דינין כי היכי דתיהוי לה חיותא אבל כפרה איש דבר מצוה אין אשה דלאו בת מצוה לא

And had the Torah taught us only that men and women are equated in civil law, one might have said that this is in order that she should be able to sustain herself by engaging in business dealings. If civil laws did not apply to a woman, one would be wary about conducting business with her. But with regard to obligating a woman to achieve atonement, one might have said that a man, who is obligated in mitzvot, yes, he is similarly obligated to achieve atonement; but a woman, who is not obligated in all the mitzvot to the same extent as a man, no, the obligation does not apply to her.

ואי אשמעינן הני תרתי הכא משום כפרה והכא משום חיותא אבל לענין קטלא איש דבר מצוה לשלם כופר אשה לא

And had the Torah taught us only these first two sources, one might have limited the fact that a woman and man are equated to these two cases, here due to the fact that she also needs atonement, and there due to the fact that she needs to be able to sustain herself. But with regard to one’s liability for his ox killing a person, one might have said that only for killing a man, who is obligated in all mitzvot, yes, the owner of the ox is liable to pay a ransom; but for killing a woman, who is not obligated in all mitzvot, one might say he is not liable.

ואי אשמעינן כופר משום דאיכא איבוד נשמה אבל הני תרתי דליכא איבוד נשמה אימא לא צריכא

And had the Torah taught us only the equivalence of a man and woman with regard to a ransom, one might have thought that this is because it is a very serious matter as there is a loss of life, but in these first two sources, where there is not a loss of life, I would say no, a woman is not included. Accordingly, it is necessary to have all three sources.

הניזק והמזיק בתשלומין

§ The mishna continues: And both the injured party and the one liable for the damage are involved in the payment.

אתמר פלגא נזקא רב פפא אמר ממונא רב הונא בריה דרב יהושע אמר קנסא

An amoraic dispute was stated with regard to the payment of half the cost of the damage made when one’s innocuous ox gores another’s animal. Rav Pappa says: It is monetary restitution for the injured party’s loss. Rav Huna, son of Rav Yehoshua, says: It is a fine.

רב פפא אמר ממונא קסבר סתם שוורים לאו בחזקת שימור קיימן ובדין הוא דבעי לשלומי כוליה ורחמנא הוא דחס עליה דאכתי לא אייעד תוריה

The Gemara elucidates: Rav Pappa says: The payment is monetary restitution, as he holds that even ordinary oxen, which have not been forewarned with regard to Goring, are not presumed to be safeguarded, as their nature does not prevent them from acting in a belligerent manner. Therefore, the owner is responsible to safeguard them, to prevent them from doing so. Accordingly, if an ox causes damage by goring, by right it should have been that the owner needs to pay the full cost of the damage. Nevertheless, the Merciful One had pity upon him, as his ox had not yet been forewarned and he was not fully aware of the possibility that it might gore, and accordingly, the Torah reduced the extent of his liability.

רב הונא בריה דרב יהושע אמר קנסא קסבר סתם שוורים בחזקת שימור קיימי ובדין הוא דלא לשלם כלל ורחמנא הוא דקנסיה כי היכי דלנטריה לתוריה

Rav Huna, son of Rav Yehoshua, says: It is a fine, as he holds that ordinary oxen are presumed to be safeguarded, as their nature prevents them from acting in a belligerent manner. Therefore, the owner is not responsible for safeguarding them to prevent them from doing so. Accordingly, if an ox causes damage by goring, by right it should have been that the owner does not pay at all. Nevertheless, the Merciful One penalized him in order that he will safeguard his ox, even before it is forewarned, and decreed that the fine should be given to the injured party even though he is not really entitled to be compensated for his loss.

תנן הניזק והמזיק בתשלומין בשלמא למאן דאמר פלגא נזקא ממונא היינו דשייך ניזק בתשלומין אלא למאן דאמר פלגא נזקא קנסא השתא דלאו דידיה שקיל בתשלומין איתיה

We learned in the mishna: Both the injured party and the one liable for the damage are involved in the payment. Granted, according to the one who says that the payment of half the cost of the damage is monetary restitution, this assumes that the injured party is theoretically entitled to receive the full value of his damaged animal but in practice receives only half. This is what the mishna means by saying that the injured party is also involved in the payment, because it is as though he is compelled to forgo half of the cost of the damage that by right he should be paid. But according to the one who says that the payment of half the cost of the damage is a fine, which assumes that the injured party is not really entitled to be compensated for his loss, now that even the money that he takes is not his by right, is it accurate to describe him as being involved in the payment?

לא נצרכא אלא לפחת נבילה

The Gemara explains: The mishna’s statement is necessary only with regard to the fact that the injured party is the one who absorbs the loss due to the diminishing value of the carcass between the animal’s death and the time that the case is brought before the court. Since he must absorb this financial loss, it may be said that he is involved in the payment.

פחת נבילה הא תנא ליה רישא תשלומי נזק מלמד שהבעלים מטפלין בנבילה

The Gemara asks: How can one claim that the mishna is referring to the diminishing value of the carcass? Isn’t it already taught in the first clause of the mishna, which by using the term: Payments of restitution for damage, teaches that the owner of the injured animal attends to, i.e., retains ownership of, the animal carcass? And therefore it follows that he bears any depreciation in its value, as the Gemara (10b) explained above.

חדא בתם וחדא במועד

The Gemara explains why the mishna needs to teach this principle twice: One mention is made with regard to an innocuous ox and the other one is made with regard to a forewarned ox.

וצריכא דאי אשמעינן תם משום דאכתי לא אייעד אבל מועד אימא לא ואי אשמעינן מועד משום דקא משלם כוליה אבל תם אימא לא צריכא

And it is necessary to state both cases, because if it would teach us the principle only with regard to an innocuous ox, I might say that only there does the Torah limit the liability of the owner of the ox, because it has not yet been forewarned. But with regard to a forewarned ox, I would say the Torah does not limit the owner’s liability at all and the owner must also bear the loss due to the diminishing value of the carcass. And similarly, if it would teach us the principle only with regard to a forewarned ox, I might say that only there does the Torah limit the owner’s liability because he is paying the full cost of the damage, so the Torah does not overly burden him. But with regard to an innocuous ox, where he is liable for only half of the damage, I would say the Torah does not limit his liability any further, so he must bear the loss of the diminishing value of the carcass. Therefore, it is necessary to state the principle in both cases.

תא שמע מה בין תם למועד שהתם משלם חצי נזק מגופו ומועד משלם נזק שלם מן העלייה

The Gemara attempts to prove whether the payment of half the cost of the damage is considered to be monetary restitution or a fine: Come and hear a proof from a mishna (16b): What is the difference between the liability incurred for damage caused by an innocuous ox and that caused by a forewarned ox? The difference is that the owner of an innocuous ox pays half the cost of the damage exclusively from proceeds of the sale of its body, and the owner of a forewarned ox pays the full cost of the damage from his superior-quality property.

ואם איתא ליתני נמי הא תם אינו משלם על פי עצמו מועד משלם על פי עצמו

The Gemara explains the challenge posed by the mishna: And if it is so, that payment for damage caused by an innocuous ox is considered a fine, let the mishna also teach this additional distinction: The owner of an innocuous ox does not pay based on his own admission, in accordance with the halakha that one does not pay a fine based on one’s own admission, whereas the owner of a forewarned ox pays based on his own admission.

תנא ושייר מאי שייר דהאי שייר

The Gemara answers: The tanna could have taught this distinction; however, he taught only certain distinctions and omitted others, including this one. The Gemara asks: What else did he omit that he omitted this? A tanna would never omit just a single case, perforce there must be another halakha he omitted.

שייר חצי כופר

The Gemara answers: He omitted the halakha that if an innoc-uous ox kills someone, its owner does not pay even half of the ransom payment, whereas if the ox is forewarned, he pays the full ransom.

אי משום חצי כופר לאו שיורא הוא הא מני רבי יוסי הגלילי היא דאמר תם משלם חצי כופר

The Gemara rejects this: If one claims that the mishna omits the halakha of one who admits his liability due to the fact that it also omits the halakha that the owner of an innocuous ox does not pay even half of the ransom, that is a flawed claim, as this is not an omission, because one could say: In accordance with whose opinion is this mishna? It is in accordance with the opinion of Rabbi Yosei HaGelili, who says that when an innocuous ox kills a person, one pays half the ransom, and therefore the distinction between an innocuous and forewarned ox is included in the mishna’s ruling that the owner of an innocuous ox pays half the cost of the damage. Accordingly, no proof can be adduced from the mishna.

תא שמע

The Gemara suggests another proof: Come and hear a proof from a mishna (Ketubot 41a):

המית שורי את פלוני או שורו של פלוני הרי זה משלם על פי עצמו

If one admits: My ox killed so-and-so, or my ox killed so-and-so’s ox, then this person pays based on his own admission.

מאי לאו בתם

The Gemara analyzes the mishna: What, is the halakha of the mishna not stated with regard to an innocuous ox? If so, this mishna proves that one is required to pay for half the cost of the damage even based on one’s own admission, which demonstrates that the payment is monetary restitution and not a fine.

לא במועד אבל תם מאי הכי נמי דאין משלם על פי עצמו אי הכי אדתני סיפא המית שורי את עבדו של פלוני אין משלם על פי עצמו לפלוג וליתני בדידיה

The Gemara rejects the proof: No, the halakha of the mishna is stated with regard to a forewarned ox. The Gemara asks: But according to this explanation, if it had been an innocuous ox that gored, what would be the halakha? Would one say that indeed, he does not pay based on his own admission? But if so, rather than teaching in the latter clause of the mishna in Ketubot: If one admits: My ox killed so-and-so’s Canaanite slave, he does not pay based on his own admission, let the mishna differentiate and teach the distinction with regard to the case raised in the first clause itself. The reason for the distinction between the cases when one’s ox kills a Jew or a Canaanite slave is that in the first one pays monetary restitution, while in the second one pays a fine. If the mishna wishes to demonstrate the difference between a fine and monetary restitution with regard to admission, then instead of introducing a new case, the mishna would have modified the case of the previous clause.

במה דברים אמורים במועד אבל בתם אינו משלם על פי עצמו

The mishna would have continued: In what case is this statement in the first clause said? It is said with regard to a forewarned ox, but with regard to an admission that one’s innocuous ox gored, he does not pay based on his own admission. The fact that the mishna does not do so suggests that in fact one is required to pay for half the cost of the damage based on one’s own admission that his innocuous ox gored. Evidently, the payment is considered to be monetary restitution.

כולה במועד קמיירי

The Gemara rejects this: The reason the mishna did not raise the distinction between an innocuous and a forewarned ox is not because that distinction is not a valid one, but because the entire mishna speaks only of cases of a forewarned ox. Accordingly, no proof can be adduced from the mishna.

תא שמע זה הכלל כל המשלם יותר על מה שהזיק אינו משלם על פי עצמו מאי לאו הא פחות ממה שהזיק משלם

The Gemara suggests further: Come and hear a proof from the concluding clause of the mishna just cited: This is the principle: Anyone who pays more than the cost of that which he damaged does not pay based on his own admission. The Gemara infers: What, is it not that were he liable to pay less than the cost of that which he damaged, he would pay based on his own admission? Since when an innocuous ox gores, its owner is liable to pay more than the cost of the damage, the payment is clearly not monetary restitution, and this is why it is not payable based on one’s own admission.

לא הא כמה שהזיק משלם

The Gemara rejects the inference: No, one should infer only that were he liable to pay as much as the cost of that which he damaged, he pays based on his own admission. If the sum to be paid is more or less than the cost of that which he damaged, he would not pay based on his own admission.

אבל פחות מאי הכי נמי דלא משלם אי הכי אדתני זה הכלל כל המשלם יותר על מה שהזיק אינו משלם על פי עצמו ליתני זה הכלל כל שאינו משלם כמה שהזיק דמשמע פחות ומשמע יותר תיובתא

The Gemara asks. But according to that opinion, where one is liable to pay less than the cost of the damage, what would be the halakha? Would one say that, indeed, he does not pay based on his own admission? If so, instead of teaching: This is the principle: Anyone who pays more than the cost of that which he damaged does not pay based on his own admission, let the mishna teach instead: This is the principle: Anyone who does not pay as much as the cost of that which he damaged does not pay based on his own admission. As that statement indicates cases where one is liable to pay more than the cost of that which he damaged and it also indicates cases where one is liable to pay less than the cost of that which he damaged. Evidently, the mishna holds that where one’s liability is for less than the cost of the damage, it is payable based on one’s own admission. This therefore provides a conclusive refutation of the opinion that the payment for half the cost of the damage is a fine.

והלכתא פלגא נזקא קנסא

The Gemara adds: And the halakha is that the payment for half the cost of the damage is a fine.

תיובתא והלכתא

The Gemara notes the obvious inconsistency: How can it be that the Gemara offers a conclusive refutation of the opinion that the payment for half the cost of the damage is a fine and then state that the halakha is in accordance with that opinion?

אין טעמא מאי הויא תיובתא משום דלא קתני כמו שהזיק

The Gemara explains: Yes, the halakha may be in accordance with that opinion because of the following resolution of the refutation. What is the reason that the Gemara held that there is a conclusive refutation of the opinion that the payment for half the cost of the damage is a fine? Because the mishna does not teach: Anyone who does not pay as much as the cost of that which he damaged does not pay based on his own admission. This is not, in fact, a conclusive refutation, as even if one holds that the payment of half the cost of the damage for an innocuous ox is considered monetary restitution, one can still explain why the mishna doesn’t discuss cases where one is liable for less than the cost of the damage.

לא פסיקא ליה כיון דאיכא חצי נזק צרורות דהלכתא גמירא לה דממונא הוא משום הכי לא קתני

This is because the tanna cannot make an absolute statement about such cases, that one never pays based on one’s own admission. Since there is an obligation for one to pay for half the cost of the damage resulting from pebbles inadvertently propelled by the foot of a walking animal, which, through tradition it is learned that this payment is monetary restitution, and it is due to that reason that the mishna does not teach cases where one’s liability is valued at less than the cost of the damage.

והשתא דאמרת פלגא נזקא קנסא האי כלבא דאכל אימרי ושונרא דאכלה תרנגולא משונה הוא ולא מגבינן בבבל

The Gemara considers the ramifications of this halakha: And now that you have said that the halakha is that the payment of half the cost of the damage is a fine, with regard to this innocuous dog that ate lambs or this innocuous cat that ate a chicken, which is atypical behavior for dogs and cats, we do not collect the payment for these acts in the courts in Babylonia. Since it is not common for these animals to eat those animals, these acts are classified as Goring, irrespective of the fact that the animal gained pleasure from the damage, for which it would normally be classified in the category of Eating. Therefore, in cases where these animals had not performed this act of damaging before, and were therefore considered innocuous, the owner is liable for only half the cost of the damage, which is a fine. Since the collection of fines may be imposed only by judges who have been ordained, and ordination is given only in Eretz Yisrael, these payments are not collected in Babylonia.

והני מילי ברברבי אבל בזוטרי אורחיה הוא

The Gemara adds: And this matter applies only where they attacked large animals, as it is atypical behavior for them; but where they attacked small animals, since that is their typical manner of behavior, it is classified as Eating, for which the owner pays the full cost of the damage, which is certainly considered monetary restitution. Accordingly, the payment is collected by the courts in Babylonia.

ואי תפס לא מפקינן מיניה

And even in a case where the payment is considered a fine, if the injured party seized the property of the owner of the belligerent animal in order to cover his loss, we do not reclaim it from him since he is entitled to it.

ואי אמר קבעו לי זימנא דאזלינא לארעא דישראל קבעינן ליה ואי לא אזיל משמתינן ליה

And also, if the injured party said to the court: Fix a time for me to go to Eretz Yisrael to present the case before ordained judges, we fix a time for him and require the owner of the belligerent animal to go to the court in Eretz Yisrael at that time. And if he does not go, we excommunicate him for disobeying the orders of the court.

ובין כך ובין כך משמתינן ליה עד דמסלק הזיקא

And either way, we excommunicate the owner of the belligerent animal until he removes the danger, e.g., by killing the animal or otherwise neutralizing the danger.

מדרבי נתן דתניא רבי נתן אומר מניין שלא יגדל אדם כלב רע בתוך ביתו ואל יעמיד סולם רעוע בתוך ביתו תלמוד לומר לא תשים דמים בביתך

The justification for this is from the ruling of Rabbi Natan, as it is taught in a baraita: Rabbi Natan says: From where is it derived that one may not raise a vicious dog in his house, and one may not set up an unstable ladder in his house? The verse states: “You shall not bring blood into your house” (Deuteronomy 22:8), i.e., one may not allow a hazardous situation or item to remain in one’s house. As long as the hazard remains, the owner is in violation of this verse and therefore the court may excommunicate him for failing to remove the danger.

מתני׳ חמשה תמין וחמשה מועדין

MISHNA: There are five damage-causing acts that an animal can perform twice and remain innocuous even when its owner was warned each time to prevent it from doing so. After the third time, the animal is rendered forewarned. In such cases, the owner is liable to pay only half of the damages. And there are five damage-causing acts for which an animal is considered forewarned, at times even if it had never caused damage in that manner. In such cases the owner is liable to pay the full cost of the damage.

הבהמה אינה מועדת לא ליגח ולא ליגוף ולא לשוך ולא לרבוץ ולא לבעוט

An animal is not considered forewarned with regard to Goring, i.e., not for goring with its horns, nor for pushing with its body, nor for biting, nor for crouching upon items in order to damage them, nor for kicking. In these cases the animal is considered to be innocuous and its owner is liable for only half of the damages.

השן מועדת לאכול את הראוי לה הרגל מועדת לשבור בדרך הילוכה ושור המועד ושור המזיק ברשות הניזק והאדם

Concerning acts of damage performed with the tooth, the animal is considered forewarned with regard to eating that which is fitting for it to eat. Concerning acts of damage performed with the foot, the animal is considered forewarned with regard to breaking items while walking. And there is a forewarned ox, which gored three times and each time his owner was warned to safeguard his ox from doing so. And there is an ox that causes damage to the property of the injured party while on the property of the injured party. And there is the person, i.e., any damage done by a person. In all of these cases the one who caused the damage is considered to be forewarned, resulting in the obligation to pay the full cost of the damage.

הזאב והארי והדוב והנמר והברדלס והנחש הרי אלו מועדין רבי אלעזר אומר בזמן שהן בני תרבות אינן מועדין והנחש מועד לעולם

The mishna presents the halakha for wild animals: The wolf; the lion; the bear; the leopard; the bardelas, the meaning of which the Gemara will discuss; and the snake. These are considered forewarned even if they had never previously caused damage. Rabbi Elazar says: When these animals are domesticated they are not considered forewarned. But the snake is always considered forewarned.

גמ׳ מדקתני השן מועדת לאכול מכלל דבחצר הניזק עסקינן וקתני בהמה אינה מועדת לשלם כוליה אבל חצי נזק משלמת

GEMARA: From the fact that the mishna teaches in its latter clause: Concerning acts of damage performed with the tooth, the animal is considered forewarned with regard to eating that which is fitting for it to eat, we learn, by inference, that we are dealing throughout the mishna with cases of damage done in the courtyard of the injured party, as one is exempt from liability for acts of damage classified as Eating if they occur in the public domain. And yet the first clause teaches: An animal is not considered forewarned with regard to Goring. Stating that it is not forewarned indicates that the liability of its owner is limited only with regard to paying the full cost of the damage, but the owner pays half the cost of the damage.

מני רבנן היא דאמרי משונה קרן בחצר הניזק חצי נזק הוא דמשלם

The Gemara asks: Who is it that holds that when damage classified as Goring is done within the property of the injured party the owner of the belligerent animal is liable for only half of the damages? It is the Rabbis, who say: The halakha of cases of Goring performed by an innocuous animal, which is atypical behavior, done in the courtyard of the injured party, is that the owner of the ox pays half the cost of the damage.

אימא סיפא שור המועד ושור המזיק ברשות הניזק והאדם אתאן לרבי טרפון דאמר משונה קרן בחצר הניזק נזק שלם הוא דמשלם

But then say, and try to explain accordingly, the next part of the latter clause of the mishna: And there is a forewarned ox that gored three times, and each time his owner was warned to safeguard his ox from doing so. And there is an ox that causes damage to the property of the injured party while on the property of the injured party. And there is the person. In these cases, the responsible party pays full damages. With this clause we arrive at the opinion of Rabbi Tarfon, who says: The halakha of cases of Goring performed by an innocuous animal, which is atypical, done in the courtyard of the injured party, is that the owner of the ox pays the full cost of the damage even if the ox is innocuous.

רישא רבנן וסיפא רבי טרפון

The Gemara asks: Could it be that the first part of the latter clause of the mishna is in accordance with the opinion of the Rabbis and the next part of the latter clause is in accordance with the opinion of Rabbi Tarfon?

אין דהאמר ליה שמואל לרב יהודה שיננא שבוק מתניתין ותא אבתראי רישא רבנן וסיפא רבי טרפון

The Gemara answers: Yes, as Shmuel said to Rav Yehuda: Large-toothed one, leave the mishna and follow after me and my interpretation that the first part of the latter clause of the mishna is in accordance with the opinion of the Rabbis and the next part of the latter clause is in accordance with the opinion of Rabbi Tarfon.

רבי אלעזר משמיה דרב אמר

The Gemara presents a different interpretation of the mishna: Rabbi Elazar said in the name of Rav: