Bava Kamma 34
וַאֲפִילּוּ הִזִּיק עַד שֶׁלֹּא חָב – בַּעַל חוֹב קְדֵים! שְׁמַע מִינַּהּ, בַּעַל חוֹב מְאוּחָר שֶׁקָּדַם וְגָבָה – מַה שֶּׁגָּבָה לֹא גָּבָה?!
Moreover, even if the ox caused damage before he owed them, nevertheless the creditor came first and seized what he rightfully deserved. Should one conclude from the baraita that if a later creditor collected a debt before an earlier creditor, his collection is not valid and payment should instead be given to the earlier creditor?
לָא, לְעוֹלָם אֵימָא לָךְ: מַה שֶּׁגָּבָה גָּבָה; וְשָׁאנֵי הָתָם, דַּאֲמַר לֵיהּ: אִילּוּ גַּבָּךְ הֲוָה – לָא מִינָּךְ (הֲוָה) גְּבַי לֵיהּ? דְּהַאי תּוֹרָא דְּאַזְּקַן, מִינֵּיהּ מִשְׁתַּלֵּמְנָא.
The Gemara answers: No; actually, I could say to you that the collection of the later creditor is valid, and there, in the case where a creditor seized the belligerent ox, it is different, as the injured party can say to the creditor who seized the ox: If the ox was in your possession, would I not have collected it from you? The reason I would take it is that I am paid from this ox that caused me damage. Therefore, the creditor cannot collect the ox, even if the debt preceded the damage.
תָּנוּ רַבָּנַן: שׁוֹר שָׁוֶה מָאתַיִם שֶׁנָּגַח שׁוֹר שָׁוֶה מָאתַיִם, וְחָבַל בּוֹ בַּחֲמִשִּׁים זוּז, וְשָׁבַח וְעָמַד עַל אַרְבַּע מֵאוֹת זוּז – שֶׁאִלְמָלֵא לֹא הִזִּיקוֹ הָיָה עוֹמֵד עַל שְׁמֹנֶה מֵאוֹת זוּז; נוֹתֵן כִּשְׁעַת הַנֶּזֶק.
§ The Sages taught: With regard to an innocuous ox worth two hundred dinars that gored another ox worth two hundred dinars and injured it, reducing its value by fifty dinars [zuz], and the injured ox subsequently appreciated in value, and its value stood at four hundred dinars, while if the belligerent ox had not injured it, its value would have now stood at eight hundred dinars, in this case the owner of the belligerent ox gives him only twenty-five dinars, which is half the value of the damage according to its value at the time the injury occurred.
כָּחַשׁ – כִּשְׁעַת הַעֲמָדָה בַּדִּין.
If the injured ox depreciated in value and its worth is now less than at the time it was injured, the damage is evaluated according to the ox’s worth at the time of standing trial. In other words, the owner of the belligerent ox must pay the difference between its value before it was injured and its current value.
שָׁבַח מַזִּיק – נוֹתֵן לוֹ כִּשְׁעַת הַנֶּזֶק. כָּחַשׁ – כִּשְׁעַת הַעֲמָדָה בַּדִּין.
If the ox that caused the injury, from which the owner of the injured ox collects damages, appreciated in value, its owner gives the injured party a share of the ox according to its value at the time of the injury. If it depreciated in value, the owner gives him a share according to its value at the time of standing trial.
אָמַר מָר: שָׁבַח מַזִּיק – נוֹתֵן כִּשְׁעַת הַנֶּזֶק. מַנִּי – רַבִּי יִשְׁמָעֵאל הִיא, דְּאָמַר: בַּעַל חוֹב הוּא, וְזוּזֵי הוּא דְּמַסֵּיק לֵיהּ;
The Gemara asks: The Master said in the first clause of the second half of the baraita that if the ox that caused the damage appreciated in value, its owner gives the injured party a share according to the ox’s value at the time of the injury. In accordance with whose opinion is this ruling? It is apparently in accordance with the opinion of Rabbi Yishmael, who says that the injured party is considered a creditor, and it is money that he is claiming from him, as he has no share of ownership in the belligerent ox.
אֵימָא סֵיפָא: כָּחַשׁ – כִּשְׁעַת הַעֲמָדָה בַּדִּין. אֲתָאן לְרַבִּי עֲקִיבָא, דְּאָמַר: שׁוּתָּפֵי נִינְהוּ! רֵישָׁא רַבִּי יִשְׁמָעֵאל וְסֵיפָא רַבִּי עֲקִיבָא?!
The Gemara states a difficulty with this explanation: Say the latter clause of the second half of the baraita: If the belligerent ox depreciated in value, the owner gives the injured party a share according to its value at the time of standing trial. Here we arrive at the opinion of Rabbi Akiva, who says that the owners of the two oxen are partners, i.e., the injured party has a share of ownership in the belligerent ox. How can it be that the first clause is in accordance with Rabbi Yishmael’s opinion, and the latter clause follows the opinion of Rabbi Akiva?
לָא, כּוּלַּהּ רַבִּי עֲקִיבָא הִיא; וְהָכָא בְּמַאי עָסְקִינַן – כְּשֶׁפִּיטְּמוֹ.
The Gemara answers: No, it is all in accordance with the opinion of Rabbi Akiva that they are partners, and here, in the case where the belligerent ox appreciated in value, we are dealing with a case where the reason it appreciated is that its owner fattened it. Though the injured party has a share of ownership in the ox, he has no share in the appreciation in value, and his share is therefore calculated according to its value at the time of the injury.
אִי כְּשֶׁפִּיטְּמוֹ, אֵימָא רֵישָׁא: שָׁבַח וְעָמַד עַל אַרְבַּע מֵאוֹת זוּז – נוֹתֵן לוֹ כִּשְׁעַת הַנֶּזֶק. אִי כְּשֶׁפִּיטְּמו,ֹ צְרִיכָא לְמֵימַר?!
The Gemara asks: If it is a case where the owner fattened it, say the first clause of the first half of the baraita, stated with regard to the injured ox: If it appreciated in value, and its value stood at four hundred dinars, the owner of the belligerent ox gives him compensation according to its value at the time of the injury. If this is referring to a case where its owner fattened it, need it be said that the owner of the belligerent ox is not exempt from compensation?
אָמַר רַב פָּפָּא: רֵישָׁא – מַשְׁכַּחַתְּ לַהּ בֵּין דְּפַטְּמַהּ פַּטּוֹמֵי בֵּין דִּשְׁבַחָא מִמֵּילָא, וְאִצְטְרִיךְ לְאַשְׁמוֹעִינַן דְּהֵיכָא דִּשְׁבַחָא מִמֵּילָא – נוֹתֵן לוֹ כִּשְׁעַת הַנֶּזֶק. סֵיפָא – לָא מַשְׁכַּחַתְּ לַהּ אֶלָּא כְּשֶׁפִּטְּמוֹ.
Rav Pappa said: You find the halakha stated in the first clause of the first half of the baraita to be true whether he fattened it or whether it appreciated in value by itself. And the tanna found it necessary to mention this halakha to teach us that even in a case where the ox appreciated in value by itself, the owner of the belligerent ox gives him compensation according to its value at the time of the injury and not at the time of the trial. By contrast, you find the halakha stated in the latter clause of the second half of the baraita, with regard to a case where the belligerent ox appreciated in value, only where its owner fattened it.
כָּחַשׁ – כִּשְׁעַת הַעֲמָדָה בַּדִּין. כָּחַשׁ מֵחֲמַת מַאי? אִילֵימָא דְּכָחֲשָׁה מֵחֲמַת מְלָאכָה, לֵימָא לֵיהּ: אַתְּ מַכְחֲשַׁתְּ, וַאֲנָא יָהֵיבְנָא?!
It is stated in the latter clause of the first half of the baraita that if the injured ox depreciated in value, it is evaluated according to its worth at the time of standing trial. The Gemara asks: Due to what did it depreciate in value? If we say that the ox depreciated in value due to labor for which it was used, let the liable party say to him: You reduced its value and I should therefore give you extra compensation?
אָמַר רַב אָשֵׁי: דִּכְחַשׁ מֵחֲמַת מַכָּה, דַּאֲמַר לֵיהּ: קַרְנָא דְּתוֹרָךְ קְבִירָא בֵּיהּ.
Rav Ashi said: It is a case where it depreciated in value due to the continuous effect of the wound, as the injured party can say to him: The horn of your ox is buried in it, i.e., it is still losing value due to the wound.
מַתְנִי׳ שׁוֹר שָׁוֶה מָאתַיִם שֶׁנָּגַח שׁוֹר שָׁוֶה מָאתַיִם, וְאֵין הַנְּבֵילָה יָפָה כְּלוּם – אָמַר רַבִּי מֵאִיר, עַל זֶה נֶאֱמַר: ״וּמָכְרוּ אֶת הַשּׁוֹר הַחַי וְחָצוּ אֶת כַּסְפּוֹ״.
MISHNA: With regard to an innocuous ox worth two hundred dinars that gored another ox worth two hundred, and the carcass is worth nothing, Rabbi Meir said: It is about this type of case that it is stated: “Then they shall sell the live ox, and divide its monetary value” (Exodus 21:35).
אָמַר לוֹ רַבִּי יְהוּדָה: וְכֵן הֲלָכָה; קִיַּימְתָּ ״וּמָכְרוּ אֶת הַשּׁוֹר הַחַי וְחָצוּ אֶת כַּסְפּוֹ״, וְלֹא קִיַּימְתָּ ״וְגַם הַמֵּת יֶחֱצוּן״! וְאֵיזֶה? זֶה שׁוֹר שָׁוֶה מָאתַיִם שֶׁנָּגַח שׁוֹר שָׁוֶה מָאתַיִם, וְהַנְּבֵילָה יָפָה חֲמִשִּׁים זוּז; שֶׁזֶּה נוֹטֵל חֲצִי הַחַי וַחֲצִי הַמֵּת, וְזֶה נוֹטֵל חֲצִי הַחַי וַחֲצִי הַמֵּת.
Rabbi Yehuda said to him: And that is the halakha, yet your interpretation of the verse is incorrect. You have upheld the clause: “Then they shall sell the live ox and divide its monetary value,” which fits your interpretation of the case. But you have not upheld the latter clause of the verse: “And the dead they shall also divide,” since in the case you mentioned the carcass is worthless. Rather, to which case is the verse referring? It is the case of an ox worth two hundred dinars that gored another ox worth two hundred dinars, and the carcass is worth fifty dinars. In this case, this party takes half the value of the living ox, one hundred dinars, and half the value of the dead ox, twenty-five dinars; and that party also takes half the value of the living ox and half the value of the dead ox.
גְּמָ׳ תָּנוּ רַבָּנַן: שׁוֹר שָׁוֶה מָאתַיִם שֶׁנָּגַח שׁוֹר שָׁוֶה מָאתַיִם, וְהַנְּבֵילָה יָפָה חֲמִשִּׁים זוּז – זֶה נוֹטֵל חֲצִי הַחַי וַחֲצִי הַמֵּת, וְזֶה נוֹטֵל חֲצִי הַחַי וַחֲצִי הַמֵּת, וְזֶהוּ שׁוֹר הָאָמוּר בַּתּוֹרָה; דִּבְרֵי רַבִּי יְהוּדָה.
GEMARA: The Sages taught: With regard to an ox worth two hundred dinars that gored an ox worth two hundred dinars, and the carcass is worth fifty dinars, this party takes half the value of the living ox and half the value of the dead ox, and that party also takes half the value of the living ox and half the value of the dead ox, and this is the case of the belligerent ox stated in the Torah. This is the statement of Rabbi Yehuda.
רַבִּי מֵאִיר אוֹמֵר: אֵין זֶהוּ שׁוֹר הָאָמוּר בַּתּוֹרָה, אֶלָּא שׁוֹר שָׁוֶה מָאתַיִם שֶׁנָּגַח לְשׁוֹר שָׁוֶה מָאתַיִם, וְאֵין הַנְּבֵילָה יָפָה כְּלוּם, עַל זֶה נֶאֱמַר: ״וּמָכְרוּ אֶת הַשּׁוֹר הַחַי וְחָצוּ אֶת כַּסְפּוֹ״. אֶלָּא מָה אֲנִי מְקַיֵּים ״וְגַם אֶת הַמֵּת יֶחֱצוּן״? פְּחָת שֶׁפְּחָתַתּוּ מִיתָה – מַחֲצִין בַּחַי.
Rabbi Meir says: This is not the case of the ox stated in the Torah. Rather, it is the case of an ox worth two hundred dinars that gored an ox worth two hundred dinars, and the carcass is worth nothing. It is about this case that it is stated in the verse: “Then they shall sell the live ox, and divide its monetary value.” Rather, how do I realize the meaning of “And the dead they shall also divide”? This clause means that the diminished value of the dead ox that was diminished by its death is compensated for by dividing the value of the live ox between the two parties, while its owner does not receive a share in the carcass of the dead ox.
מִכְּדֵי בֵּין רַבִּי מֵאִיר בֵּין רַבִּי יְהוּדָה – הַאי מֵאָה וְעֶשְׂרִים וַחֲמִשָּׁה שָׁקֵיל, וְהַאי מֵאָה וְעֶשְׂרִים וַחֲמִשָּׁה שָׁקֵיל; מַאי בֵּינַיְיהוּ?
The Gemara asks: Now, both Rabbi Meir and Rabbi Yehuda hold that in the case described by Rabbi Yehuda, where the carcass is worth fifty, this party takes one hundred and twenty-five, and that party takes one hundred and twenty-five. Rabbi Meir holds that the injured party keeps the carcass, worth fifty, and receives another seventy-five dinars, half the value of the damage, from the proceeds of the sale of the belligerent ox. Its owner is thereby left with one hundred and twenty-five dinars out of the two hundred that it is worth. Rabbi Yehuda maintains that the value of both oxen is split between the two parties, leaving each with one hundred and twenty-five. If so, what is the difference between the two tanna’im? Why does it matter in which manner the compensation is calculated?
אָמַר רָבָא: פְּחַת נְבֵילָה אִיכָּא בֵּינַיְיהוּ. רַבִּי מֵאִיר סָבַר: פְּחַת נְבֵילָה – דְּנִיזָּק הָוֵי, וְרַבִּי יְהוּדָה סָבַר: פְּחַת נְבֵילָה – דְּמַזִּיק הָוֵי פַּלְגָא.
Rava said: There is a practical difference between them with regard to the diminishing value of the carcass. If the carcass depreciates in value between the ox’s death and the time it is sold, Rabbi Meir holds that the diminishing value of the carcass is sustained by the injured party. The one liable for the damage is not responsible for any depreciation in value that occurs after the loss caused by the attack has been evaluated. And Rabbi Yehuda holds that half of the diminishing value of the carcass is sustained by the one liable for damage, since he receives half of the dead ox.
אֲמַר לֵיהּ אַבָּיֵי: אִם כֵּן, מָצִינוּ לְרַבִּי יְהוּדָה
Abaye said to Rava: If so, we have found, according to Rabbi Yehuda,
תָּם חָמוּר מִמּוּעָד!
a case where the halakha with regard to an innocuous ox that causes damage is more stringent than with regard to a forewarned ox, since according to all opinions, in a case where a forewarned ox kills another ox, the carcass belongs exclusively to the injured party, and he sustains any subsequent decrease in its value.
וְכִי תֵּימָא הָכִי נָמֵי – כְּדִתְנַן, רַבִּי יְהוּדָה אוֹמֵר: תָּם חַיָּיב, וּמוּעָד פָּטוּר; אֵימַר דְּשָׁמְעַתְּ לֵיהּ לְרַבִּי יְהוּדָה – לְעִנְיַן שְׁמִירָה, דִּכְתִיבִי קְרָאֵי; לְעִנְיַן תַּשְׁלוּמִין מִי שָׁמְעַתְּ לֵיהּ?!
And if you would say that indeed, Rabbi Yehuda holds that the halakha with regard to an innocuous ox is more stringent than with regard to a forewarned ox, as we learned in a mishna that Rabbi Yehuda says: If a bailee did not safeguard an ox properly, and it escaped and caused damage, if it was an innocuous ox he is liable, and if it was a forewarned ox he is exempt (45b), that mishna cannot serve as proof for the issue under discussion. Say that you heard Rabbi Yehuda express this opinion, that the halakha with regard to an innocuous ox is more stringent, with regard to the halakhot of safeguarding, as verses are written in the Torah from which this halakha is derived. But with regard to compensation, did you ever hear him express this opinion?
וְהָתַנְיָא, רַבִּי יְהוּדָה אוֹמֵר: יָכוֹל שׁוֹר שָׁוֶה מָנֶה שֶׁנָּגַח שׁוֹר שָׁוֶה חָמֵשׁ סְלָעִים, וְהַנְּבֵילָה יָפָה סֶלַע – זֶה נוֹטֵל חֲצִי הַחַי וַחֲצִי הַמֵּת, וְזֶה נוֹטֵל חֲצִי הַחַי וַחֲצִי הַמֵּת?
On the contrary; but isn’t it taught in a baraita that Rabbi Yehuda says: One might have thought that in the case of an ox worth one hundred dinars that gored an ox worth five sela, i.e., twenty dinars, and the carcass is worth one sela, i.e., four dinars, the halakha is that this party takes half the living ox and half the dead ox, and that party takes half the living ox and half the dead ox. Accordingly, the injured party receives fifty-two dinars in value, which is much more than his ox was worth before it was killed.
אָמַרְתָּ: וְכִי מוּעָד לָמָּה יוֹצֵא – לְהַחְמִיר עָלָיו אוֹ לְהָקֵל עָלָיו? הֱוֵי אוֹמֵר לְהַחְמִיר עָלָיו; וּמָה מוּעָד אֵינוֹ מְשַׁלֵּם אֶלָּא מַה שֶּׁהִזִּיק, תָּם הַקַּל לֹא כׇּל שֶׁכֵּן?
Instead, continues Rabbi Yehuda, you should say: For what purpose is the case of a forewarned ox singled out by the halakha? Is it to render it more stringent than the case of an innocuous ox, or to render it more lenient? Clearly, you must say that it is to render it more stringent. And therefore, if in the case of a forewarned ox, its owner pays only the value of what he damaged and no more, in the case of an innocuous ox, which is more lenient, all the more so is it not clear that the owner is not liable to pay more than the value of the damage? Evidently, Rabbi Yehuda does not allow for liability in the case of an innocuous ox to be more stringent than in the case of a forewarned ox.
אֶלָּא אָמַר רַבִּי יוֹחָנָן: שֶׁבַח נְבֵילָה אִיכָּא בֵּינַיְיהוּ, דְּמָר סָבַר: דְּנִיזָּק הָוֵי, וּמָר סָבַר: פַּלְגָא.
Rather, Rava’s explanation, that Rabbi Meir and Rabbi Yehuda disagree with regard to a case where the carcass depreciated in value, should be rejected. Instead, their dispute should be explained according to what Rabbi Yoḥanan said, i.e., that the practical difference between them is with regard to the appreciation of the carcass in value after the ox’s death; as one Sage, Rabbi Meir, holds that the entire increased value of the carcass belongs to the injured party, since the owner of the belligerent ox has no share in the carcass, and one Sage, Rabbi Yehuda, holds that half of the increased value belongs to the injured party and half goes to the one liable for the damage.
וְהַיְינוּ דְּקָא קַשְׁיָא לֵיהּ לְרַבִּי יְהוּדָה – הַשְׁתָּא דְּאָמְרַתְּ חָס רַחֲמָנָא עִילָּוֵיהּ דְּמַזִּיק, דְּשָׁקֵיל בִּשְׁבָחָא; יָכוֹל שׁוֹר שָׁוֶה חָמֵשׁ סְלָעִים שֶׁנָּגַח שׁוֹר שָׁוֶה מָנֶה, וְהַנְּבֵילָה יָפָה חֲמִשִּׁים זוּז – זֶה נוֹטֵל חֲצִי הַחַי וַחֲצִי הַמֵּת, וְזֶה נוֹטֵל חֲצִי הַחַי וַחֲצִי הַמֵּת?
And this explains what was difficult for Rabbi Yehuda in another baraita. Now that you say that the Merciful One has mercy on the one liable for damage, as he takes a share of the increased value of the carcass, can it be that in the case of an ox worth five sela, i.e., twenty dinars, that gored an ox worth one hundred dinars, and the carcass is worth fifty dinars, this party takes half the live ox and half the dead ox, and that party takes half the live ox and half the dead ox? Accordingly, the owner of the belligerent ox receives thirty-five dinars in value, which is more than his ox was worth.
אָמַרְתָּ: הֵיכָן מָצִינוּ מַזִּיק נִשְׂכָּר, שֶׁזֶּה נִשְׂכָּר? וְאוֹמֵר: ״שַׁלֵּם יְשַׁלֵּם״ – בְּעָלִים מְשַׁלְּמִין, וְאֵין בְּעָלִים נוֹטְלִין.
Rather, you should say: Where do we find a case where the one liable for damage gains from the damage, comparable to this case, where this owner of the belligerent ox gains, receiving more than the value of his ox? Clearly there is no such case, as one who is liable for damage does not gain from it. And in addition, it says: “He shall pay” (Exodus 21:36), indicating that the owner of the belligerent ox pays, and the owner does not take more than the amount his animal was worth at the time of the damage.
מַאי ״וְאוֹמֵר״? וְכִי תֵּימָא: הָנֵי מִילֵּי הֵיכָא דְּאִיכָּא פְּסֵידָא לְנִיזָּק; אֲבָל הֵיכָא דְּלֵיכָּא פְּסֵידָא לְנִיזָּק – כְּגוֹן שׁוֹר שָׁוֶה חָמֵשׁ סְלָעִים שֶׁנָּגַח שׁוֹר שָׁוֶה חָמֵשׁ סְלָעִים, וְהַנְּבֵילָה יָפָה שְׁלֹשִׁים זוּז – שָׁקֵיל נָמֵי מַזִּיק בִּשְׁבָחָא;
The Gemara asks: For what reason was it necessary to add the claim: And it says: “He shall pay”? The Gemara answers: Lest you say that this matter, that the one liable for damage does not gain, applies specifically where there is a loss sustained by the injured party, as in this case, where the decrease in the ox’s value is fifty dinars, and if the carcass is shared by the liable party, the injured party receives only thirty-five dinars, thereby sustaining a loss. But in a case where there is no loss sustained by the injured party, for example, the case of an ox worth five sela, i.e., twenty dinars, that gored another ox worth five sela, and the carcass appreciated in value and is now worth thirty dinars, more than the ox was worth when it was alive, in this case the one liable for damage also takes a share of the increased value, since the injured party ends up not having sustained any financial loss, as he receives a share of ten dinars in the belligerent ox and another fifteen in the carcass, gaining five dinars over the value of his ox.
וְאוֹמֵר: ״שַׁלֵּם יְשַׁלֵּם״ – בְּעָלִים מְשַׁלְּמִין, וְאֵין בְּעָלִים נוֹטְלִין.
It is to counter this claim that Rabbi Yehuda adds: And it says: “He shall pay,” indicating that the owner of the belligerent ox pays, and the owner does not take more than the amount his animal was worth at the time of the damage.
אֲמַר לֵיהּ רַב אַחָא בַּר תַּחְלִיפָא לְרָבָא: אִם כֵּן, מָצִינוּ לְרַבִּי יְהוּדָה תָּם מְשַׁלֵּם יוֹתֵר מֵחֲצִי נֶזֶק, וְהַתּוֹרָה אָמְרָה: ״וּמָכְרוּ אֶת הַשּׁוֹר הַחַי וְחָצוּ אֶת כַּסְפּוֹ״!
§ With regard to Rabbi Yehuda’s opinion that the two owners split the value of both the belligerent ox and the dead ox between them, Rav Aḥa bar Taḥalifa said to Rava: If so, we find that according to Rabbi Yehuda, when an innocuous ox gores an ox that is worth less than it, its owner pays more than half the damage. But the Torah stated: “Then they shall sell the live ox, and divide its monetary value” (Exodus 21:35).
אִית לֵיהּ לְרַבִּי יְהוּדָה: פְּחָת שֶׁפָּחֲתָה מִיתָה – מַחֲצִין בַּחַי.
Rava answered him: Rabbi Yehuda also holds that only the diminished value of the dead ox that was diminished by its death is compensated for by dividing the live ox between the two parties. The liable party never pays more than half the damage.
מְנָא לֵיהּ? מִ״וְּגַם אֶת הַמֵּת יֶחֱצוּן״?! וְהָא אַפְּקֵיהּ רַבִּי יְהוּדָה לְזֶה נוֹטֵל חֲצִי הַחַי וַחֲצִי הַמֵּת, וְזֶה נוֹטֵל חֲצִי הַחַי וַחֲצִי הַמֵּת!
The Gemara asks: From where does Rabbi Yehuda derive this halakha? Is it from the verse: “And the carcass they shall also divide” (Exodus 21:35), from which Rabbi Meir derived it? But didn’t Rabbi Yehuda already derive from this verse that this party takes the value of half the live ox and half the dead ox, and that party takes the value of half the live ox and half the dead ox?
אִם כֵּן, נִכְתּוֹב קְרָא: ״וְאֶת הַמֵּת״! מַאי ״וְגַם״? שְׁמַע מִינַּהּ תַּרְתֵּי.
The Gemara answers: If so, if that is the only halakha indicated by this clause, let the verse simply write: And the carcass they shall divide. What is the reason that the word “also” is added? It is added so that one may conclude two conclusions from the clause: That the carcass is also divided between the two parties, and that the liable party is never required to pay more than half the damage.
מַתְנִי׳ יֵשׁ חַיָּיב עַל מַעֲשֵׂה שׁוֹרוֹ וּפָטוּר עַל מַעֲשֵׂה עַצְמוֹ, פָּטוּר עַל מַעֲשֵׂה שׁוֹרוֹ וְחַיָּיב עַל מַעֲשֵׂה עַצְמוֹ.
MISHNA: There are cases where one is liable for an act of damage caused by his ox, but exempt from liability for the same action if he performed it himself. Conversely, there are also cases where one is exempt from liability for the action of his ox, but liable for his own action.
כֵּיצַד? שׁוֹרוֹ שֶׁבִּיֵּישׁ – פָּטוּר, וְהוּא שֶׁבִּיֵּישׁ – חַיָּיב. שׁוֹרוֹ שֶׁסִּימֵּא אֶת עֵין עַבְדּוֹ וְהִפִּיל אֶת שִׁינּוֹ – פָּטוּר, וְהוּא שֶׁסִּימֵּא אֶת עֵין עַבְדּוֹ וְהִפִּיל אֶת שִׁינּוֹ – חַיָּיב.
How so? If his ox caused a person humilation, he is exempt from paying compensation, but if he himself humiliated another, he is liable. Similarly, if his ox blinded the eye of his slave or knocked out his slave’s tooth, he is exempt from having to emancipate the slave for this mutilation. But if he himself blinded his slave’s eye or knocked out his tooth, he is liable to emancipate him, as stated in the Torah (Exodus 21:26–27).
שׁוֹרוֹ שֶׁחָבַל בְּאָבִיו וּבְאִמּוֹ – חַיָּיב, וְהוּא שֶׁחָבַל בְּאָבִיו וְאִמּוֹ – פָּטוּר. שׁוֹרוֹ שֶׁהִדְלִיק אֶת הַגָּדִישׁ בְּשַׁבָּת – חַיָּיב, וְהוּא שֶׁהִדְלִיק אֶת הַגָּדִישׁ בְּשַׁבָּת – פָּטוּר, מִפְּנֵי שֶׁהוּא מִתְחַיֵּיב בְּנַפְשׁוֹ.
By contrast, if his ox injured the owner’s father or his mother, he is liable to pay damages, but if he himself injured his father or his mother, he is exempt from paying compensation. Similarly, if his ox set fire to a haystack on Shabbat, he is liable to pay damages. But if he himself set fire to a haystack on Shabbat, he is exempt from paying damages. He is exempt from payment in these cases due to the fact that he is liable to receive the death penalty for injuring his father or mother or for desecrating Shabbat.
גְּמָ׳ תָּנֵי רַבִּי אֲבָהוּ קַמֵּיהּ דְּרַבִּי יוֹחָנָן: כׇּל הַמְקַלְקְלִין פְּטוּרִין, חוּץ מֵחוֹבֵל וּמַבְעִיר. אֲמַר לֵיהּ: פּוֹק תָּנֵי לְבָרָא! חוֹבֵל וּמַבְעִיר אֵינָהּ מִשְׁנָה. וְאִם תִּימְצֵי לוֹמַר מִשְׁנָה; חוֹבֵל – בְּצָרִיךְ לְכַלְבּוֹ, מַבְעִיר – בְּצָרִיךְ לְאֶפְרוֹ.
GEMARA: Rabbi Abbahu taught the following baraita before Rabbi Yoḥanan: Anyone who performs labor destructively on Shabbat is exempt, except for one who injures another or kindles a fire. Rabbi Yoḥanan said to him: Go out and teach it outside; this baraita is not fit for discussion in the study hall. The opinion that deems one liable for injuring another or kindling a fire on Shabbat is not a mishna and should be ignored. And if you say that it is a mishna, one who injures another would be liable only in a case where he requires the blood to give to his dog, and one who kindles a fire would be liable only in a case where he requires its ashes. In these cases, the act is not purely destructive but has some constructive purpose.
תְּנַן: שׁוֹרוֹ שֶׁהִדְלִיק אֶת הַגָּדִישׁ בְּשַׁבָּת – חַיָּיב, וְהוּא שֶׁהִדְלִיק אֶת הַגָּדִישׁ בְּשַׁבָּת – פָּטוּר. וְקָתָנֵי הוּא דּוּמְיָא דְשׁוֹרוֹ – מָה שׁוֹרוֹ דְּלָא קָבָעֵי לֵיהּ,
We learned in the mishna: If his ox set fire to a haystack on Shabbat, he is liable. But if he himself set fire to a haystack on Shabbat, he is exempt. And the mishna is presumably teaching a case where he set the fire in a scenario that is similar to the case where his ox did so. Just as in the case where his ox set the fire it clearly does not need the ashes, as an ox does not act with such intentions,
