Bava Kamma 41
כְּמַאן דְּקַטְלַהּ דָּמֵי, קָא מַשְׁמַע לַן.
that the ox should be considered like one that killed her, as it was the reason for her execution, and therefore its owner should be liable to pay a ransom, the baraita teaches us that this is not the case.
רָבָא אָמַר: לְעוֹלָם דְּרַבְעַהּ וְקַטְלַהּ; וּדְקָא קַשְׁיָא לָךְ: מָה לִי קַטְלַהּ בְּקַרְנַיִם, מָה לִי קַטְלַהּ בִּרְבִיעָה – קֶרֶן כַּוּוֹנָתוֹ לְהַזִּיק, הַאי כַּוּוֹנָתוֹ לַהֲנָאַת עַצְמוֹ הוּא.
Rava said: Actually, it is a case where the animal engaged in bestiality with her and killed her in the process. And as for the difficulty you pose: What is the difference to me whether it killed her with its horns, and what is the difference to me whether it killed her through bestiality, the answer is that in that case of an animal killing with its horn, its intention is to cause injury, whereas in this case of killing through bestiality its intention is to achieve its own pleasure.
בְּמַאי פְּלִיגִי? בְּרֶגֶל שֶׁדָּרְסָה עַל גַּבֵּי תִּינוֹק בַּחֲצַר הַנִּיזָּק; לְאַבָּיֵי – מְשַׁלֵּם כּוֹפֶר, לְרָבָא – לָא מְשַׁלֵּם כּוֹפֶר.
The Gemara asks: With regard to what other case would Abaye and Rava disagree? They disagree with regard to a case where an ox trampled a child with its foot, killing it, in the courtyard of the injured party. According to Abaye, the owner pays the ransom, as he holds that ransom is paid even if the animal’s objective was not to cause injury or death. According to Rava, he does not pay the ransom.
תַּנְיָא כְּווֹתֵיהּ דְּרַב: שׁוֹר הָאִיצְטָדִין – אֵינוֹ חַיָּיב מִיתָה, וְכָשֵׁר לְגַבֵּי מִזְבֵּחַ; מִפְּנֵי שֶׁהוּא כִּמְעוּשֶּׂה.
It is taught in a baraita in accordance with the opinion of Rav: A stadium ox that killed a person is not liable to be put to death and is fit to be sacrificed as an offering on the altar, because it is as though it was compelled to behave in this manner.
מַתְנִי׳ שׁוֹר שֶׁנָּגַח אֶת הָאָדָם, וּמֵת – מוּעָד מְשַׁלֵּם כּוֹפֶר, וְתָם פָּטוּר מִן הַכּוֹפֶר. וְזֶה וְזֶה חַיָּיבִין מִיתָה. וְכֵן בַּבֵּן, וְכֵן בַּבַּת. נָגַח עֶבֶד אוֹ אָמָה – נוֹתֵן שְׁלֹשִׁים סְלָעִים; בֵּין שֶׁהוּא יָפֶה מֵאָה מָנֶה, וּבֵין שֶׁאֵינוֹ יָפֶה אֶלָּא דִּינָר אֶחָד.
MISHNA: With regard to an ox that gored a person and the person died, if the ox was forewarned its owner pays ransom, but if it was innocuous he is exempt from paying the ransom. And both this forewarned ox and that innocuous ox are liable to be put to death for killing a person. And the same halakha applies in a case where the animal killed a boy and the same applies in a case where it killed a girl. If the ox gored and killed a Canaanite slave or a Canaanite maidservant, its owner gives the victim’s master thirty sela, whether he was a slave worth one hundred maneh, i.e., one hundred silver dinars, or worth only one dinar.
גְּמָ׳ וְכִי מֵאַחַר דְּמִתָּם קָטְלִינַן לֵיהּ, מוּעָד הֵיכִי מַשְׁכַּחַתְּ לַהּ?
GEMARA: The Gemara asks: But since we kill the ox for killing a person when it is still considered innocuous, how can you find a case of a forewarned ox killing a person?
אָמַר רַבָּה: הָכָא בְּמַאי עָסְקִינַן – כְּגוֹן שֶׁאֲמָדוּהוּ לִשְׁלֹשָׁה בְּנֵי אָדָם.
Rabba said: Here we are dealing with a case where in three instances of attacking people, the court assessed that had the people not escaped, the ox would certainly have killed them. Therefore, despite the fact that the ox did not kill anyone, it now has the status of a forewarned ox.
רַב אָשֵׁי אָמַר: אוּמְדָּנָא לָאו כְּלוּם הוּא. אֶלָּא הָכָא בְּמַאי עָסְקִינַן – כְּגוֹן שֶׁסִּיכֵּן לִשְׁלֹשָׁה בְּנֵי אָדָם.
Rav Ashi said: Such an assessment is not worth anything. Since the ox did not actually kill them, it is not rendered forewarned even if it intended to kill. Rather, here we are dealing with a case where it endangered the lives of three people by goring them, and they all died only after the third goring. Therefore, the ox had not been put to death.
רַב זְבִיד אָמַר: כְּגוֹן שֶׁהָרַג שָׁלֹשׁה בְּהֵמוֹת.
Rav Zevid said: The mishna is discussing a case where it killed three animals, which is sufficient to render the ox forewarned but for which it is not put to death.
וּמוּעָד לִבְהֵמָה הָוֵי מוּעָד לְאָדָם? אֶלָּא אָמַר רַב שִׁימִי: כְּגוֹן שֶׁהָרַג שְׁלֹשָׁה גּוֹיִם.
The Gemara asks: But is an animal that is forewarned with regard to animals considered forewarned with regard to people as well? Certainly it is not. Rather, Rav Shimi said: The mishna is discussing a case where it killed three gentiles, for which the animal is not put to death.
וּמוּעָד לְגוֹיִם הָוֵי מוּעָד לְיִשְׂרָאֵל? אֶלָּא אָמַר רַבִּי שִׁמְעוֹן בֶּן לָקִישׁ: כְּגוֹן שֶׁהָרַג שְׁלֹשָׁה בְּנֵי אָדָם טְרֵפָה.
The Gemara asks: But is an animal that is forewarned with regard to gentiles considered forewarned with regard to Jews as well? Rather, Rabbi Shimon ben Lakish said: The mishna is discussing a case where it killed three people who had wounds that would have caused them to die within twelve months [tereifa]. Since they were on the verge of dying anyway, the ox is not put to death for killing them. Nevertheless, it is rendered forewarned with regard to its future goring and killing of people.
וּמוּעָד לִטְרֵפָה הָוֵי מוּעָד לְשָׁלֵם? אֶלָּא אָמַר רַב פָּפָּא: דִּקְטַל וַעֲרַק לְאַגְמָא, דִּקְטַל וַעֲרַק לְאַגְמָא.
The Gemara asks: But is an animal that is forewarned with regard to a tereifa considered forewarned with regard to an intact person, i.e., one who is not a tereifa? Rather, Rav Pappa said: The mishna is discussing a case where it killed a person and fled to the marsh, then killed again and fled to the marsh, and then killed again and fled to the marsh, so the court was not able kill it before it had killed three times, rendering it forewarned.
רַב אַחָא בְּרֵיהּ דְּרַב אִיקָא אָמַר: כְּגוֹן שֶׁהוּזְמוּ זוֹמְמֵי זוֹמְמִין.
Rav Aḥa, son of Rav Ika, said: The mishna is discussing a case where the witnesses who had rendered the witnesses who testified to the three incidents of goring as conspiring witnesses, resulting in the animal not being put to death, were themselves subsequently proven to be conspiring witnesses by other witnesses. Consequently, the testimonies of the witnesses who testified about the incidents of goring were reinstated, rendering the ox forewarned.
הָנִיחָא אִי לְיַיעוֹדֵי תּוֹרָא בָּעֵינַן – שַׁפִּיר. אֶלָּא אִי לְיַיעוֹדֵי גַּבְרָא בָּעֵינַן, מֵימַר אֲמַר לֵיהּ: לָא הֲוָה יָדַעְנָא! כְּגוֹן דְּאָמְרִי: כֹּל אֵימַת דְּקָטֵיל תּוֹרֵיהּ, גַּבֵּיהּ הֲוָה קָאֵי.
The Gemara asks: This explanation works out well if it is assumed that the purpose of testifying to the ox’s goring is because we wish to establish the ox as forewarned; once the testimony concerning the incidents of goring is reinstated, it is established that the ox gored three times. But if we wish to warn the man who owns the ox by testifying that the animal gored, he could say to the judge, after it is established that his ox was forewarned: I did not know that my ox was forewarned, since the witnesses had previously been rendered conspiring witnesses. The Gemara answers: This is a case where the witnesses say: Each time his ox killed a person he was standing by it, so that he cannot claim ignorance.
רָבִינָא אָמַר: בְּמַכִּירִין אֶת בַּעַל הַשּׁוֹר, וְאֵין מַכִּירִין אֶת הַשּׁוֹר.
Ravina said: The mishna is discussing a case where the witnesses recognized the owner of the ox but did not recognize the ox itself. Therefore, with regard to the first incidents of goring, they testified that it was his ox that gored, but they did not testify with regard to the ox itself. That is why the ox was not put to death. Only afterward did they realize that this was the ox that had gored three times previously.
מַאי הֲוָה לֵיהּ לְמֶעְבַּד? מִשּׁוּם דְּאָמְרִי לֵיהּ: תּוֹרָא נַגְחָנָא אִית לָךְ בְּבַקְרָךְ, אִיבְּעִי לָךְ נַטּוֹרֵי כּוּלֵּי בַּקְרָךְ.
The Gemara asks: If so, why is the ox rendered forewarned? What could the owner have done to prevent it from goring again, as he did not know which of his oxen had gored? The Gemara answers that it is rendered forewarned because the court effectively said to him: You have a habitually goring ox in your herd, so you must safeguard your entire herd.
וְזֶה וָזֶה חַיָּיבִין מִיתָה כּוּ׳. תָּנוּ רַבָּנַן: מִמַּשְׁמַע שֶׁנֶּאֱמַר ״סָקֹל יִסָּקֵל הַשּׁוֹר״ – אֵינִי יוֹדֵעַ שֶׁנְּבֵילָה הִיא, וּנְבֵילָה אֲסוּרָה בַּאֲכִילָה? מָה תַּלְמוּד לוֹמַר ״לֹא יֵאָכֵל אֶת בְּשָׂרוֹ״? מַגִּיד לְךָ הַכָּתוּב, שֶׁאִם שְׁחָטוֹ לְאַחַר שֶׁנִּגְמַר דִּינוֹ – אָסוּר בַּאֲכִילָה.
§ The mishna teaches: And both this forewarned ox and that innocuous ox are liable to be put to death. The Sages taught: We learn by inference from that which is stated with regard to an ox that killed a person: “And if an ox gores a man or a woman, that they die, the ox shall be stoned, and its flesh shall not be eaten; but the owner of the ox shall be clear” (Exodus 21:28). Don’t I know from this verse that the stoning makes it an unslaughtered animal carcass, and it is prohibited to eat an unslaughtered animal carcass? What is the meaning when the verse states: “Its flesh shall not be eaten”? The verse is telling you that even if one slaughtered the ox after its verdict had been reached but before it was stoned, it is still prohibited to eat it.
אֵין לִי אֶלָּא בַּאֲכִילָה, בַּהֲנָאָה מִנַּיִן? תַּלְמוּד לוֹמַר: ״וּבַעַל הַשּׁוֹר נָקִי״.
I have derived only that one is prohibited to eat it; from where is it derived that one is prohibited from deriving benefit from the ox as well? The verse states: “But the owner of the ox shall be clear.”
מַאי מַשְׁמַע? שִׁמְעוֹן בֶּן זוֹמָא אוֹמֵר, כְּאָדָם שֶׁאוֹמֵר לַחֲבֵירוֹ: ״יָצָא אִישׁ פְּלוֹנִי נָקִי מִנְּכָסָיו, וְאֵין לוֹ בָּהֶם הֲנָאָה שֶׁל כְּלוּם״.
The Gemara asks: What is the inference? How is this halakha derived from the statement that the owner shall be clear? Shimon ben Zoma says: This is like a person who says to his friend: So-and-so was left clear of his property, and has no benefit from it at all. Similarly, “but the owner of the ox shall be clear” means that he may not derive benefit from the ox.
וּמִמַּאי דְּ״לֹא יֵאָכֵל אֶת בְּשָׂרוֹ״ – לְהֵיכָא דִּשְׁחָטוֹ אַחַר שֶׁנִּגְמַר דִּינוֹ, שֶׁאָסוּר בַּאֲכִילָה? אֵימָא דְּהֵיכָא דִּשְׁחָטוֹ לְאַחַר שֶׁנִּגְמַר דִּינוֹ – שְׁרֵי בַּאֲכִילָה הוּא; וְהַאי ״לֹא יֵאָכֵל אֶת בְּשָׂרוֹ״ – לְהֵיכָא דְּסַקְלֵיהּ מִסְקָל, דְּאָסוּר בַּהֲנָאָה הוּא – כִּדְרַבִּי אֲבָהוּ,
The Gemara asks: And from where is it known that this phrase: “Its flesh shall not be eaten,” serves to teach a halakha with regard to a case where he slaughtered the ox after its verdict was reached, but before it was stoned, and is teaching that one is prohibited to eat it? Why not say that it is permitted to eat the ox if he slaughtered it after its verdict had been reached. And this phrase: “Its flesh shall not be eaten,” serves to teach a halakha with regard to a case where they had already stoned it, but not to teach a prohibition against eating it, as that is already known due to the fact that it was stoned. Rather, it serves to prohibit deriving benefit from the ox, and that would be in accordance with the statement of Rabbi Abbahu.
דְּאָמַר רַבִּי אֲבָהוּ אָמַר רַבִּי אֶלְעָזָר: כׇּל מָקוֹם שֶׁנֶּאֱמַר ״לֹא יֹאכַל״; ״לֹא תֹאכַל״; ״לֹא תֹאכְלוּ״ – אֶחָד אִיסּוּר אֲכִילָה וְאֶחָד אִיסּוּר הֲנָאָה בַּמַּשְׁמָע,
As Rabbi Abbahu says that Rabbi Elazar says that wherever it is stated: “It shall not be eaten”; or “you,” singular, “shall not eat”; or “you,” plural, “shall not eat”; both a prohibition against eating and a prohibition against deriving benefit are indicated. This is so unless the verse specifies for you that one may derive benefit, in the manner that it specified for you with regard to an animal carcass, from which the verse explicitly permits one to derive benefit.
עַד שֶׁיִּפְרֹט לְךָ הַכָּתוּב כְּדֶרֶךְ שֶׁפָּרַט לְךָ בִּנְבֵילָה – לַגֵּר בִּנְתִינָה, וְלַנׇּכְרִי בִּמְכִירָה!
The Gemara continues: This is so unless the verse specifies for you that one may derive benefit, in the manner that it specified for you with regard to an animal carcass, from which the verse explicitly permits one to derive benefit, as it states: “You may sell it to a foreigner” (Deuteronomy 14:21). Accordingly, it is permitted to transfer an unslaughtered animal carcass to a ger toshav, i.e., a gentile who resides in Eretz Yisrael and observes the seven Noahide mitzvot, through giving it to him as a gift, and to any other gentile through selling it to him. Apparently, without this explicit permission, it would be prohibited to derive any benefit from a carcass, due to the prohibition: “You shall not eat.” Here, too, with regard to the ox that is stoned, the phrase: “Its flesh shall not be eaten,” may serve to teach that one may not derive benefit from the stoned ox.
אָמְרִי: הָנֵי מִילֵּי הֵיכָא דְּנָפֵיק לֵיהּ אִיסּוּר אֲכִילָה וְאִיסּוּר הֲנָאָה מִקְּרָא – מִ״לֹּא יֹאכַל״; אֲבָל הָכָא, דְּאִיסּוּר אֲכִילָה מִ״סָּקֹל יִסָּקֵל״ נָפְקָא, אִי סָלְקָא דַעְתָּךְ הַאי ״לֹא יֵאָכֵל אֶת בְּשָׂרוֹ״ אִיסּוּר הֲנָאָה הוּא, נִכְתּוֹב רַחֲמָנָא: ״לֹא יֵהָנֶה״, אִי נָמֵי ״לֹא יֵאָכֵל״; ״אֶת בְּשָׂרוֹ״ לְמָה לִי? דְּאַף עַל גַּב דְּעַבְדֵיהּ כְּעֵין בָּשָׂר, דְּשַׁחְטֵיהּ – אָסוּר.
The Sages said in response: That statement applies where both the prohibition of eating and the prohibition of deriving benefit are derived from a verse using an expression such as: “It shall not be eaten.” But here, where the prohibition of eating is derived from the statement: “The ox shall be stoned,” if it enters your mind that this expression: “Its flesh shall not be eaten,” is stated only in reference to the prohibition of deriving benefit, let the Merciful One write explicitly: Benefit shall not be derived from it. Alternatively, let the verse simply state: “It shall not be eaten”; why do I require the specific term: “Its flesh”? Clearly, the intention of the verse is to teach that even if he has rendered it like kosher flesh by properly slaughtering it after the verdict, one is still prohibited to eat it.
מַתְקֵיף לַהּ מָר זוּטְרָא: אֵימָא הָנֵי מִילֵּי
Mar Zutra objects to this: Say that this statement applies
הֵיכָא דְּבָדַק צוּר וְשָׁחַט בּוֹ – דְּעַבְדֵיהּ כְּעֵין סְקִילָה, אֲבָל הֵיכָא דְּשַׁחְטֵיהּ בְּסַכִּין – לָא!
only in a case where he checked a sharp piece of flint, and, seeing that it did not have any defects, slaughtered the ox with it. In that case, one could say that by slaughtering it with a stone, he performed the equivalent to stoning. Therefore, it is prohibited to eat it. But in a case where he slaughtered it with a knife made of metal, one is not prohibited from eating it.
אָמְרִי: אַטּוּ סַכִּין כְּתִיבָא בְּאוֹרָיְיתָא? וְהָתְנַן: הַשּׁוֹחֵט בְּמַגַּל יָד, בְּצוֹר וּבְקָנֶה – שְׁחִיטָתוֹ כְּשֵׁירָה.
The Sages said in response: Is that to say that it is written in the Torah that slaughter must performed specifically with a knife, which would justify a distinction between slaughtering with a stone and a knife? But didn’t we learn in the mishna (Ḥullin 15b): With regard to one who slaughters with a hand-sickle, with a piece of flint, or with a reed, if these implements were suitable to be used for slaughter, his slaughter is valid?
וְהַשְׁתָּא דְּנָפְקָא לֵיהּ אִיסּוּר אֲכִילָה וְאִיסּוּר הֲנָאָה מִ״לֹּא יֵאָכֵל אֶת בְּשָׂרוֹ״, ״בַּעַל הַשּׁוֹר נָקִי״ לְמָה לִי? לַהֲנָאַת עוֹרוֹ. דְּסָלְקָא דַּעְתָּךְ אָמֵינָא: בְּשָׂרוֹ הוּא דְּאָסוּר בַּהֲנָאָה, עוֹרוֹ נִשְׁתְּרֵי בַּהֲנָאָה; קָמַשְׁמַע לַן ״בַּעַל הַשּׁוֹר נָקִי״.
The Gemara asks: And according to Rabbi Abbahu, now that he derives the prohibition of eating and the prohibition of deriving benefit from the verse “Its flesh shall not be eaten,” why do I require the statement: “The owner of the ox shall be clear”? The Gemara answers: This is stated to prohibit deriving benefit from its hide after it has been killed; as it could enter your mind to say that it is specifically its flesh from which it is prohibited to derive benefit, as the verse states: “Its flesh shall not be eaten,” but deriving benefit from its hide will be permitted. Therefore, the Torah teaches us that the owner of the ox shall be clear, to indicate it is prohibited to derive benefit from any part of the ox.
וּלְהָנָךְ תַּנָּאֵי דְּמַפְּקִי לֵיהּ לְהַאי ״בַּעַל הַשּׁוֹר נָקִי״ לִדְרָשָׁה אַחֲרִינָא [כִּדְבָעֵינַן לְמֵימַר קַמַּן], הֲנָאַת עוֹרוֹ מְנָא לְהוּ?
The Gemara asks: And according to those tanna’im who expound this verse: “The owner of the ox shall be clear,” for another interpretation, as we wish to state below, from where do they derive this prohibition against deriving benefit from the ox’s hide?
נָפְקָא לְהוּ מֵ״אֶת בְּשָׂרוֹ״ – אֶת הַטָּפֵל לִבְשָׂרוֹ, מַאי נִיהוּ – עוֹרוֹ.
The Gemara answers: They derive it from the wording: “Its flesh may not be eaten [velo ye’akhel et besaro].” The verse could have been formulated: Velo ye’akhel besaro, which already means: And its flesh shall not be eaten. The addition of the word “et” teaches that the prohibition applies also to that which is secondary to the flesh. And what is that? That is its hide.
וְהַאי תַּנָּא – ״אֶת״ לָא דָּרֵישׁ.
The Gemara adds: And this tanna, who derives it from the statement: “The owner of the ox shall be clear,” does not interpret the word “et” as a means to derive new halakhot. He considers the word “et” to be an ordinary part of the sentence structure and not a source for exegetical exposition.
כִּדְתַנְיָא: שִׁמְעוֹן הָעַמְסוֹנִי, וְאָמְרִי לַהּ נְחֶמְיָה הָעַמְסוֹנִי, הָיָה דּוֹרֵשׁ כׇּל ״אֶתִּין״ שֶׁבַּתּוֹרָה. כֵּיוָן שֶׁהִגִּיעַ לְ״אֶת ה׳ אֱלֹהֶיךָ תִּירָא״, פֵּירַשׁ. אָמְרוּ לוֹ תַּלְמִידָיו: רַבִּי, כׇּל ״אֶתִּין״ שֶׁדָּרַשְׁתָּ – מָה תְּהֵא עֲלֵיהֶן? אָמַר לָהֶם: כְּשֵׁם שֶׁקִּבַּלְתִּי שָׂכָר עַל הַדְּרִישָׁה, כָּךְ קִבַּלְתִּי שָׂכָר עַל הַפְּרִישָׁה.
As it is taught in a baraita: Shimon HaAmasoni, and some say that it was Neḥemya HaAmasoni, would interpret all occurrences of the word “et” in the Torah, deriving additional halakhot with regard to the particular subject matter. Once he reached the verse: “You shall fear the Lord your God” (Deuteronomy 6:13), which is written with the added word “et,” he withdrew from this method of exposition, as whose fear could be an extension of the fear of God? His students said to him: Our teacher, what will be with all the occurrences of the word “et” that you interpreted until now? He said to them: Just as I received reward for the exposition, so I received reward for my withdrawal from using this method of exposition.
עַד שֶׁבָּא רַבִּי עֲקִיבָא, וְלִימֵּד: ״אֶת ה׳ אֱלֹהֶיךָ תִּירָא״ – לְרַבּוֹת תַּלְמִידֵי חֲכָמִים.
The word “et” in this verse was not explained until Rabbi Akiva came and expounded: “You shall fear the Lord your God”: The word “et” serves to include Torah scholars, i.e., that one is commanded to fear them just as one fears God. In any event, Shimon HaAmasoni no longer derived additional halakhot from the word et.
תָּנוּ רַבָּנַן: ״וּבַעַל הַשּׁוֹר נָקִי״ – רַבִּי אֱלִיעֶזֶר אוֹמֵר: נָקִי מֵחֲצִי כוֹפֶר.
§ The Sages taught with regard to the verse: “But the owner of the ox shall be clear,” that Rabbi Eliezer says: It means that he shall be clear from paying half a ransom. Although the owner of an innocuous ox that causes damage is liable to pay half the cost of the damage, if an ox kills a person its owner is not liable to pay any ransom.
אָמַר לוֹ רַבִּי עֲקִיבָא: וַהֲלֹא הוּא עַצְמוֹ אֵין מִשְׁתַּלֵּם אֶלָּא מִגּוּפוֹ, ״הֲבִיאֵהוּ לְבֵית דִּין, וִישַׁלֶּם לָךְ״!
Rabbi Akiva said to him: Why is it necessary for the verse to teach this? But isn’t compensation for damage caused by an innocuous ox itself anyway paid only from the value of its body? Here too, its owner can say to the claimant: Bring it to court and it will pay you, i.e., you will be paid from its value. Since the ox is stoned, there is nothing from which he can receive payment. Therefore, according to your interpretation, the verse does not introduce any halakha that could not have been inferred by logic, and is therefore superfluous.
אָמַר לוֹ רַבִּי אֱלִיעֶזֶר: כָּךְ אֲנִי בְּעֵינֶיךָ, שֶׁדִּינִי בָּזֶה שֶׁחַיָּיב מִיתָה? אֵין דִּינִי אֶלָּא כְּשֶׁהֵמִית אֶת הָאָדָם עַל פִּי עֵד אֶחָד, אוֹ עַל פִּי בְעָלִים.
Rabbi Eliezer said to him: Is this how I appear in your eyes, that my derivation from the verse is in reference to this case, that of an ox that is liable to be put to death? Obviously no verse would be required to teach this halakha in such a case. My derivation is only with regard to a case where the assumption that the ox killed a person is based on the testimony of one witness, or is based on the admission of the owner. Such proof is not sufficient for the ox to be put to death by stoning, but one might have thought that it is sufficient to require its owner to pay ransom.
עַל פִּי בְעָלִים?! מוֹדֶה בִּקְנָס הוּא!
The Gemara asks: If it is based on the admission of the owner, he clearly would not be liable to pay ransom, since he would be admitting to an act that results in a fine, in which case a person is exempt from paying the fine; so why would it be necessary for the verse to state this exemption?
קָסָבַר כּוּפְרָא – כַּפָּרָה.
The Gemara answers: Rabbi Eliezer holds that ransom is for the purpose of atonement, and is not considered a fine. Accordingly, one might have assumed that even in a case where there is not conclusive testimony, the owner must pay ransom to atone for the killing. Therefore, the verse states that in the case of an innocuous ox, the owner is not liable to pay half a ransom.
תַּנְיָא אִידַּךְ, אָמַר לוֹ רַבִּי אֱלִיעֶזֶר: עֲקִיבָא, כָּךְ אֲנִי בְּעֵינֶיךָ, שֶׁדִּינִי בָּזֶה שֶׁחַיָּיב מִיתָה? אֵין דִּינִי אֶלָּא בְּמִתְכַּוֵּון לַהֲרוֹג אֶת הַבְּהֵמָה וְהָרַג אֶת הָאָדָם; לְגוֹי וְהָרַג יִשְׂרָאֵל; לִנְפָלִים וְהָרַג בֶּן קַיָּימָא.
It is taught in another baraita that Rabbi Eliezer said to him: Akiva, is this how I appear in your eyes, that my derivation from the verse is in reference to this case, that of an ox that is liable to be put to death? My derivation is only with regard to a case where the ox intended to kill an animal but killed a person instead; or where it intended to kill a gentile but killed a Jew; or where it intended to kill a non-viable baby but killed a viable person. An ox is not put to death if it intended to gore in a manner which would not render it liable to be put to death, even if it did gore in such a manner. In such a case, the owner of the ox must pay ransom. Therefore, the verse states that if it is an innocuous ox, the owner is exempt from paying half a ransom.
הֵי אֲמַר לֵיהּ בְּרֵישָׁא? רַב כָּהֲנָא מִשְּׁמֵיהּ דְּרָבָא אָמַר: ״מִתְכַּוֵּון״ אֲמַר לֵיהּ בְּרֵישָׁא. רַב טָבְיוֹמֵי מִשְּׁמֵיהּ דְּרָבָא אָמַר: ״הֵמִית״ אֲמַר לֵיהּ בְּרֵישָׁא.
These two baraitot cite different responses that Rabbi Eliezer gave Rabbi Akiva. Which one of these explanations did he say to him first? Rav Kahana said in the name of Rava: He first said to him the explanation referring to the ox’s intention to kill someone for which it would not be liable to be put to death, and subsequently gave him the second explanation with regard to the testimony of a single witness, or the owner’s admission. Rav Tavyumei said in the name of Rava: He first said to him the explanation that it is a case where the assumption that the ox killed was based on one witness or its owner’s admission.
רַב כָּהֲנָא מִשְּׁמֵיהּ דְּרָבָא אָמַר ״מִתְכַּוֵּון״ אֲמַר לֵיהּ בְּרֵישָׁא – מָשָׁל לְצַיָּד שֶׁשּׁוֹלֶה דָּגִים מִן הַיָּם,
The Gemara explains the reasoning behind the two opinions: Rav Kahana said in the name of Rava that first he said to him the explanation involving the ox’s intention, since this opinion is preferable to the other one, against which a difficulty was raised earlier. This is analogous to a fisherman pulling fish from the sea.
