Talmud - Bava Kamma 34b בבא קמא ל״ד ב׳

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.

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?

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.

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.

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.

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.

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.

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.

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.

§ 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).

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.

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?

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.

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.

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).

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.

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.

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,

Traduction : The William Davidson digital edition of the Koren Noé Talmud, with commentary by Rabbi Adin Even-Israel Steinsaltz.

BavaKamma 34b examines liability differences between innocuous and forewarned oxen, analyzing Rabbi Yehuda's rulings on compensation and carcass ownership after damage.