Bava Kamma 43

או גיורת זכה

and subsequently married a Canaanite slave who had also been emancipated, and became pregnant from him, or if she was a convert who became pregnant from a male convert, and both the husband and wife died without heirs, the assailant gains by not having to pay, since there are no heirs. In any event, it is explicitly stated in the baraita that the beneficiary of the compensation due to her, including that which she would have received during her lifetime, is not her husband but rather her heirs.

אמר רבה בגרושה וכן אמר רב נחמן בגרושה

Rabba said: This baraita relates to a divorcée; since they got divorced, the husband does not inherit from her. Likewise, Rav Naḥman said: The baraita relates to a divorcée.

אמרי גרושה נמי תיפלוג בדמי ולדות

The Sages said in response: If she is a divorcée, she should also share in the compensation for the miscarried offspring. Why should her ex-husband receive the full payment?

אמר רב פפא התורה זכתה דמי ולדות לבעל אפילו בא עליה בזנות מאי טעמא אמר קרא כאשר ישית עליו בעל האשה

Rav Pappa said: The Torah awarded the payment of compensation for miscarried offspring to the husband, even if he is not actually her legal husband but rather engaged in licentious sexual intercourse with her. Although he has no rights to her property, the damages for the miscarried offspring belong to him alone, as he is the father of the offspring. What is the reason? The verse states: “As the husband [ba’al] of the woman shall impose upon him” (Exodus 21:22), indicating that damages are not collected by the woman, but by the man who engaged in intercourse [ba’al] with her, impregnating her. Therefore, if they got divorced, the ex-husband receives the payment.

ונוקמה לרבה כגון שגבו מעות ולרב נחמן כגון שגבו קרקע

The Gemara asks: Why do Rabba and Rav Naḥman explain this baraita as referring to a divorcée? They could have answered, in accordance with their own opinions elsewhere (Bava Batra 124b), that it is referring to payments that are not considered to have been in the woman’s possession during her lifetime, but rather are considered property due to the woman, which her husband does not inherit. Let us establish this baraita, according to Rabba, as referring to a case where they collected money for the damage and pain, and according to Rav Naḥman, where they collected land.

דאמר רבה גבו קרקע יש לו גבו מעות אין לו ורב נחמן אמר גבו מעות יש לו גבו קרקע אין לו

As with regard to the right of a firstborn to receive a double portion of the inheritance of his father, he receives a double portion only of the property possessed by his father, not of the property due to him. In a case where money was owed to the father, Rabba says: If the heirs collected the debt from land, the firstborn has the right to a double portion, since it is considered property that was already in the father’s possession. If they collected money, he does not have a double portion, as it is considered property due to the father. And Rav Naḥman says: If they collected money, he has a double portion, and if they collected land, he does not have a double portion.

הני מילי לבני מערבא אליבא דרבנן

The Gemara answers: That statement applies according to the residents of the West, i.e., Eretz Yisrael, in accordance with the opinion of the Rabbis, who limit the rights of a firstborn to his father’s property to the extent that they hold he does not receive a double portion of any appreciation in the property occurring after his father’s death.

כי קאמרי הכא כרבי

By contrast, when they state that this baraita here relates to a divorcée, it is in accordance with the opinion of Rabbi Yehuda HaNasi that the firstborn receives a double portion even in the appreciation of the property occurring after the father’s death. According to this opinion, clearly everything due to the father is considered to be in his possession, whether he receives his compensation in money or in land. The same applies to a husband, who inherits the rights to inherit compensation for damage and pain inflicted on his wife. That is why Rabba and Rav Naḥman had to interpret this baraita as relating to a divorcée.

אמר רבי שמעון בן לקיש שור שהמית את העבד שלא בכוונה פטור משלשים שקלים שנאמר כסף שלשים שקלים יתן לאדניו והשור יסקל כל זמן שהשור בסקילה הבעלים משלמין שלשים שקלים אין השור בסקילה אין הבעלים משלמין שלשים שקלים

§ Rabbi Shimon ben Lakish says: With regard to an ox that killed a Canaanite slave unintentionally, the owner is exempt from paying the fine of thirty shekels, as it is stated: “He shall give to their master thirty shekels of silver, and the ox shall be stoned” (Exodus 21:32). It is derived from the verse that the liability to pay thirty shekels is dependent on the stoning of the ox; whenever the ox is liable to be killed by stoning, the owner pays thirty shekels as compensation for the damage. If the ox is not liable to be killed by stoning, e.g., if it killed unintentionally, the owner does not pay thirty shekels.

אמר רבה שור שהמית בן חורין שלא בכוונה פטור מכופר שנאמר השור יסקל וגם בעליו יומת אם כפר יושת עליו כל זמן שהשור בסקילה בעלים משלמין כופר אין השור בסקילה אין בעלים משלמין כופר

Similarly, Rabba says: With regard to an ox that killed a freeman unintentionally, its owner is exempt from paying ransom; as it is stated: “The ox shall be stoned, and its owner also shall be put to death. If a ransom is laid on him” (Exodus 21:29–30). This indicates that whenever the ox is liable to be killed by stoning the owner pays ransom; and if the ox is not liable to be killed by stoning the owner does not pay ransom.

איתיביה אביי המית שורי את פלוני או שורו של פלוני הרי זה משלם על פי עצמו מאי לאו כופר

Abaye raised an objection to Rabba’s statement from a mishna: If a person admits: My ox killed so-and-so, or: My ox killed the ox of so-and-so, this owner pays based on his own admission (Ketubot 41a). This cannot be referring to the payment of a fine, as a person who admits his responsibility for an act incurring a fine is exempt from paying the fine. Clearly, it must be referring to a payment for which one can render himself liable through admission. What, is it not referring to the payment of ransom? If so, this proves that payment of ransom is not dependent on whether the ox is liable to be killed by stoning, as the ox cannot be killed based on its owner’s admission alone.

לא דמים

The Gemara answers: No, it is referring to payment of the monetary value of the victim. Although he is not liable to pay ransom, as the ox is not killed, nevertheless, since by his own admission his ox caused damage, he is liable to pay damages.

אי דמים אימא סיפא המית שורי את עבדו של פלוני אינו משלם על פי עצמו ואי דמים אמאי לא

Abaye challenged this answer: If it is referring to the value of the victim, say the latter clause of that mishna: If a person admits: My ox killed the Canaanite slave of so-and-so, he does not pay based on his own admission. And if, as you claim, the mishna is referring to the value of the victim, not to the thirty-shekel fine, why should he not pay?

אמר ליה יכילנא לשנויי לך רישא דמים וסיפא קנס מיהו שנוייא דחיקא לא משנינא לך אידי ואידי דמים

Rabba said to Abaye: I could have answered you by saying that the former clause, which discusses an ox killing a freeman, is referring to the value of the victim, and the latter clause, which relates to an ox that gored a slave, is referring to payment of the thirty-shekel fine. But I will not answer you with a forced answer. Instead, I will answer as follows: Both this clause and that clause refer to the value of the victim;

מיהו בן חורין דמשלם כופר על פי עצמו והיכי דמי דאי אתו סהדי ואסהידו ביה דקטל ולא ידעי אי תם הוה אי מועד הוה ואמר מריה דמועד הוא דמשלם כופר על פי עצמו היכא דליכא עדים משלם דמים

but there is a distinction between the two cases. With regard to an ox killing a freeman, there is a scenario where the owner pays ransom based on his own admission. And what are the circumstances? If witnesses came and testified that the ox killed a freeman and is therefore liable to be killed by stoning, but they did not know whether it was innocuous or if it was forewarned, and its owner said that it was forewarned. In this case, the owner pays ransom based on his own admission, since the ox is liable to be killed, and the ransom is for atonement and does not constitute a fine. Therefore, even where there are no witnesses, and the ox is therefore not liable to be killed by stoning for killing a person, nevertheless, the owner at least pays the monetary value of the victim based on his admission.

גבי עבד שאינו משלם קנס על פי עצמו והיכי דמי דאי אתו עדים ואסהידו ביה דקטל ולא ידעי אי תם הוה אי מועד הוה ואמר מריה מועד הוא לא משתלם קנס על פי עצמו היכא דליכא עדים לא משלם דמים

By contrast, with regard to an ox killing a slave, there is a scenario where one does not pay the fine of thirty shekels based on his own admission. And what are the circumstances where one would be liable to pay this fine due to his own admission? If witnesses came and testified that the ox killed a slave, but they did not know whether it was innocuous or if it was forewarned, and its owner said that it was forewarned. In this case, even though the ox is liable to be killed, the owner does not pay the fine based on his own admission, due to the principle that one does not pay a fine based on his own admission. Therefore, in a case where there are no witnesses, he does not even pay the value of the victim based on his own admission.

מתיב רב שמואל בר רב יצחק כל שחייב בבן חורין חייב בעבד בין בכופר בין במיתה

Rav Shmuel bar Rav Yitzḥak raises an objection from a baraita that states a principle: In any scenario where a person is liable for his ox killing a freeman, he is liable for his ox killing a Canaanite slave, whether with regard to liability to pay ransom or with regard to the ox being put to death.

כופר בעבד מי איכא אלא לאו דמים

The wording of the baraita is unclear: Is there a ransom to be paid in the case of a slave? Ransom is paid only for the killing of a freeman. Rather, is it not referring to payment of the value of the victim? This poses a difficulty for Rabba’s opinion that one is not liable to pay the value of the victim for admitting to his ox’s killing of a slave.

איכא דאמרי הוא מותיב לה והוא מפרק לה איכא דאמרי אמר ליה רבה הכי קתני כל שחייב בבן חורין בכוונה על פי עדים כופר חייב בעבד קנס וכל שחייב בבן חורין שלא בכוונה על פי עדים דמים חייב בעבד שלא בכוונה על פי עדים דמים

There are those who say that he, Rav Shmuel bar Rav Yitzḥak, raised the objection and he resolved it, and there are those who say it was Rabba who said to him in response, that this is what the baraita is teaching: In any scenario where a person is liable to pay ransom for his ox killing a freeman, e.g., where it gored intentionally based on the testimony of witnesses, he is liable to pay a fine for his ox killing a slave. And in any scenario where one is liable to pay the value of the victim for his ox killing a freeman, e.g., where it gored unintentionally based on the testimony of witnesses, for a slave too, one is liable to pay the value, namely, where it gored unintentionally based on the testimony of witnesses. Accordingly, one does not pay the value of a slave based on his own admission, although he does pay the value of a freeman if he admits that his ox killed him.

אמר ליה רבא אי הכי אשו שלא בכוונה על פי עדים נשלם דמים

Rava said to Rabba: If that is so, that one is liable to pay the value of the victim in cases where he is exempt from paying ransom, then if a person burns another to death unintentionally with his fire, and the proof is based on the testimony of witnesses, he should, likewise, at least pay the value of the victim.

ומנא ליה לרבא דלא משלם

The Gemara asks: And from where does Rava know that he does not pay the value of the victim if he started the fire unintentionally?

אילימא מדתנן היה גדי כפות לו ועבד סמוך לו ונשרף עמו חייב עבד כפות לו וגדי סמוך לו ונשרף עמו פטור

If we say that it is from what we learned in a mishna (61b): If one ignites a heap of grain and there was a goat bound to an item adjacent to it, and there was also a slave adjacent to it but not bound, and they were burned together with the heap of grain, he is liable to pay for the heap of grain and for the goat. If the slave was bound to it in such a way that he was unable to flee from the fire, and the goat was adjacent to it, and they were burned with it, he is exempt from liability. Apparently, there is no liability even if he unintentionally burned the slave to death.

האמר ריש לקיש כגון שהצית בגופו של עבד דקם ליה בדרבה מיניה

The Gemara comments: If this is Rava’s source, there is no proof from here. Didn’t Reish Lakish say that the mishna is referring to a case where he ignited the body of the slave directly, in which case he is exempt from paying damages because he receives the greater punishment of them? Since he is liable to receive court-imposed capital punishment for killing the slave, he is not liable to pay damages. Therefore, this does not serve as proof that one is not liable to pay the value of a fire victim.

ואלא מהא דתניא חומר באש מבבור שהאש מועדת לאכול בין דבר הראוי לה בין דבר שאין ראוי לה מה שאין כן בבור ואילו שהאש משלמת שלא בכוונה דמים מה שאין כן בבור לא קתני

And if Rava’s proof is rather from that which is taught in a baraita (10a): The stringency that applies to Fire as opposed to Pit is that the one responsible for Fire is considered forewarned with regard to its consuming both something that is fitting for it and something that is not fitting for it, i.e., both flammable and non-flammable items. This is not so with regard to Pit, as damages are not paid for everything that can be damaged by a pit. But the baraita does not teach: That with regard to Fire, one is liable to pay the value of the victim even if the fire was ignited unintentionally. This is not so with regard to Pit. This would seem to support Rava’s opinion that one is not liable to pay the value of an unintentional victim of fire.

דלמא תנא ושייר

The Gemara comments: If this is Rava’s source, there is no proof from here. Perhaps the baraita taught one distinction and omitted another; it simply did not enumerate all the differences.

אלא רבא גופיה אבעויי מבעיא ליה אשו שלא בכוונה מי משלם דמים או לא

Rather, Rava’s statement should not be understood as an objection to Rabba’s opinion, as Rava himself had a dilemma with regard to the matter: If a person burns another to death unintentionally with his fire, does he pay the value of the victim or not?

מי אמרינן גבי שור הוא דבכוונה משלם כופר שלא בכוונה משלם דמים אבל אשו דבכוונה לא משלם כופר שלא בכוונה נמי לא משלם דמים או דלמא כיון דגבי שורו שלא בכוונה אף על גב דליכא כופר משלם דמים גבי אשו נמי אף על גב דבכוונה לא משלם כופר שלא בכוונה מיהת משלם דמים

The Gemara elaborates on the question: Do we say that it is specifically with regard to death caused by one’s ox, where if it was done intentionally he pays ransom and where it was done unintentionally he pays the victim’s monetary value instead; but with regard to death caused by his fire, where even if it was done intentionally he does not pay ransom, if it was done unintentionally he does not pay the value either? Or perhaps, since with regard to the case where his ox gored unintentionally, although there is no liability to pay ransom, nevertheless, he at least pays the value of the victim. One should say that with regard to his fire too, even though in a case where it was done intentionally he does not pay ransom, when it was done unintentionally, he should pay the value in any event.

ולא ידעינן תיקו

The Gemara concludes: And we do not know the solution to this dilemma, which shall stand unresolved.

כי אתא רב דימי אמר רבי יוחנן כפר מה תלמוד לומר אם כפר לרבות כופר שלא בכוונה ככופר בכוונה

§ With regard to Rabba’s statement that for an ox that killed a person unintentionally one is exempt from paying ransom, the Gemara relates that when Rav Dimi came from Eretz Yisrael, he reported that Rabbi Yoḥanan says: It would have been sufficient for the verse to state: “A ransom is laid on him.” What is the meaning when the verse states: “If a ransom is laid on him” (Exodus 21:30)? It is to include liability to pay ransom in a case where the ox killed unintentionally, just as one is liable to pay ransom when it killed intentionally, in contrast to Rabba’s opinion.

אמר ליה אביי אלא מעתה עבד נמי מה תלמוד לומר אם עבד לרבות עבד שלא בכוונה כעבד בכוונה וכי תימא הכי נמי והאמר ריש לקיש שור שהמית את העבד שלא בכוונה פטור משלשים שקלים

Abaye said to Rav Dimi: If Rabbi Yoḥanan’s interpretation is so, it should be implemented with regard to the fine for a Canaanite slave as well, and it would have been sufficient for the verse to state: The ox gores a slave or a maidservant, he shall give to their master thirty shekels of silver. What is the meaning when the verse states: “If the ox gores a slave” (Exodus 21:32)? It is to include liability in a case where the ox killed a Canaanite slave unintentionally, just as when it killed a slave intentionally. And if you would say that indeed this is the halakha, but doesn’t Reish Lakish say that for an ox that killed a slave unintentionally its owner is exempt from paying the thirty shekels?

אמר ליה גברא אגברא קא רמית

Rav Dimi said to Abaye: Are you setting the statement of one man against the statement of another man? It could be that although Reish Lakish maintains that he is exempt, Rabbi Yoḥanan holds that he is liable.

כי אתא רבין אמר רבי יוחנן עבד מה תלמוד לומר אם עבד לרבות עבד שלא בכוונה כעבד בכוונה

When Ravin came from Eretz Yisrael, he confirmed that this is the opinion of Rabbi Yoḥanan, as he says that it would have been sufficient for the verse to state: “The ox gores a slave.” What is the meaning when the verse states: “If the ox gores a slave”? It is to include liability in a case where the ox killed a slave unintentionally, just as when it killed a slave intentionally.

ולריש לקיש נמי נימא מדעבד אם עבד לא דריש כפר אם כפר נמי לא דריש

The Gemara suggests: And according to Reish Lakish, let us say similarly that from the fact that he does not interpret the difference between the terms “a slave” and “if a slave” to derive an additional halakha, it may be inferred that he does not interpret the difference between the terms “a ransom” and “if a ransom” either, and holds that ransom is not paid if the incident was unintentional.

אמרי לא עבד אם עבד לא דריש כפר אם כפר דריש

The Sages said: No, that is not a valid comparison. Although Reish Lakish does not interpret the difference between the terms “a slave” and “if a slave,” he does interpret the difference between the terms “a ransom” and “if a ransom.”

ומאי שנא עבד אם עבד לא כתיב במקום תשלומין כפר אם כפר כתיב במקום תשלומין

And what is different between the two verses? The terms “a slave” and “if a slave” are not written where the liability for payment is stated, but rather in the presentation of the case: “If the ox gores a slave.” Therefore, the use of the word “if” is warranted. By contrast, the terms “a ransom” and “if a ransom” are written where the liability for payment is stated, where it would have been sufficient for the verse to state: “A ransom is laid on him.” Therefore, the superfluous word “if” lends itself to interpretation to include liability to pay ransom even in a case where the killing was unintentional.

וכן בבן או בבת תנו רבנן או בן יגח או בת יגח לחייב על הקטנים כגדולים

§ The mishna teaches: And the same halakha applies in a case where the ox killed a boy or in a case where it killed a girl. The Sages taught: The verse states: “Whether it has gored a son or has gored a daughter” (Exodus 21:31), to deem the owner liable for the death of minors just as for adults.

והלא דין הוא הואיל וחייב אדם באדם וחייב שור באדם מה כשחייב אדם באדם לא שנא בין קטנים לגדולים אף כשחייב שור באדם לא תחלוק בו בין קטנים לגדולים

The baraita asks: And could this not be derived through logical inference? Since the Torah renders a person liable to receive court-imposed capital punishment for killing another person, and, similarly, renders an ox liable to be killed for killing a person, it should be derived that just as when the Torah renders a person liable for killing a person the Torah makes no distinction between killing minors and killing adults, so too, when it renders an ox liable to be killed for killing a person, do not differentiate with regard to it between minors and adults.

ועוד קל וחומר הוא ומה אדם באדם שלא עשה בו קטנים כגדולים חייב בו על הקטנים כגדולים

And furthermore, it could be inferred a fortiori: If in the case of a person killing a person the Torah does not render minors entirely like adults with regard to this act, inasmuch as minors are exempt from liability for killing, but nevertheless it renders a person liable for killing minors as well as adults,