Talmud - Bava Kamma 36b בבא קמא ל״ו ב׳

he shall return it to the owner of the previous ox, the mishna should have ruled that the surplus shall be returned to all of them, i.e., all the prior injured parties, since they all share joint ownership of the belligerent ox.

Rava said: Actually, the mishna is in accordance with the opinion of Rabbi Yishmael, who says that all the injured parties are creditors. And as for the difficulty you pose, that instead of stating that the owner of the latest of the oxen gored in succession gains, the mishna should have stated that the owner of the earliest of the oxen gored in succession gains, that can be answered. With what are we dealing here? We are dealing with a case where the first injured party seized the ox to collect payment from it, and consequently became like a paid bailee with regard to damage it causes. Therefore, he is responsible for any subsequent attacks by the ox. Similarly, if the next injured party seizes the ox from the first as compensation, he becomes responsible for any subsequent attacks.

The Gemara asks: If so, instead of the mishna stating that if there is surplus value left in his ox after he pays that owner, he shall return it to the owner of the previous ox that was gored, it should have stated that he shall return it to its owner, since half the value of the belligerent ox belongs to its owner, who is not responsible for any later damage it causes.

Ravina said that this is what the mishna is teaching: If there is surplus value with regard to its damages, i.e., the latter injured party sustained less of a loss than the previous one, that injured party shall return this surplus value to the previous injured party.

Similarly, when Ravin came from Eretz Yisrael, he related that Rabbi Yoḥanan said: The mishna touched on this topic with regard to a bailee’s negligence.

The Gemara asks: In accordance with which opinion did you interpret the ruling in the mishna? Was it in accordance with the opinion of Rabbi Yishmael? If so, say the latter clause of the mishna: Rabbi Shimon says that the division of the compensation is as follows: With regard to an innocuous ox worth two hundred dinars that gored an ox worth two hundred dinars, thereby killing it, and the carcass is worthless, the injured party takes one hundred dinars from the proceeds of the sale of the belligerent ox, and the owner of the belligerent ox takes the remaining one hundred dinars.

If the ox, after goring the first ox but before compensation had been paid, again gored another ox worth two hundred dinars, and the carcass is worthless, the owner of the last ox that was gored takes one hundred dinars; and with regard to payment for the previous goring, the owner of this ox that was gored takes fifty dinars, which is half the remaining value of the belligerent ox after one hundred dinars were paid to the last injured party, and the owner of that belligerent ox takes the remaining fifty dinars. If the ox, after goring the first two oxen but before compensation had been paid, again gored another ox worth two hundred dinars, and the carcass is worthless, the last injured party takes one hundred dinars, the previous one takes fifty dinars, and the first two divide the remainder, each receiving one gold dinar, which is worth twenty-five silver dinars.

The Gemara continues: In the ruling of Rabbi Shimon, we arrive at the opinion of Rabbi Akiva, who says that the ox belongs to its owner and to the injured party, who are considered partners in the ownership of the ox. Is it possible that the first clause is in accordance with the opinion of Rabbi Yishmael and the latter clause is in accordance with the opinion of Rabbi Akiva?

The Sages said that yes, this is the case, as Shmuel said to Rav Yehuda: Shinnana, leave the presumption that the entire mishna follows one opinion and follow my interpretation: The first clause is in accordance with the opinion of Rabbi Yishmael and the latter clause is in accordance with the opinion of Rabbi Akiva.

It was also stated that Rabbi Yoḥanan says: The practical difference between the opinions of Rabbi Meir and Rabbi Shimon in the mishna is with regard to a case where the injured party consecrated the ox. If he is a partner in the ownership of the ox, his consecration takes effect; if he is considered merely a creditor, the consecration is ineffective. Evidently, Rabbi Yoḥanan also holds that the dispute in the mishna corresponds to the dispute between Rabbi Yishmael and Rabbi Akiva.

§ With regard to the gold dinar mentioned in the mishna, we learned in another mishna there (90a): One who slaps [hatokea] another is liable to give him a sela as a compensatory fine. Rabbi Yehuda says in the name of Rabbi Yosei HaGelili: He is liable to give him one hundred dinars.

The Gemara relates: There was a certain man who slapped another. Rav Toviya bar Mattana sent an enquiry before Rav Yosef, asking him whether the sela we learned about in the mishna is referring to a Tyrian sela, which is worth four dinars, or whether the sela we learned about in the mishna is referring to a provincial sela, worth only half of a dinar, or one-eighth of a Tyrian sela.

Rav Yosef said to him: You learned this in a mishna: And the first two divide the remainder, each receiving one gold dinar, worth twenty-five silver dinars. And if it enters your mind that the tanna teaches monetary sums using a provincial sela in order to calculate compensation, let him further divide the value that the first two litigants receive and teach a case where the belligerent ox gored an additional ox, so that their shares decrease until they reach twelve dinars and one sela apiece, which are twelve and a half dinars. The fact that he does not do so indicates that the mishna does not use a provincial sela, whose value is less than one dinar, and therefore a gold dinar cannot be divided in a manner that leaves each party with whole coins.

Rav Toviya bar Mattana said to him: This is not proof; should the tanna have continued teaching additional cases, exhausting all possibilities, like a peddler selling his wares, who advertises every item of his merchandise? The cases cited in the mishna suffice to illustrate the point.

What halakhic conclusion was reached about this matter? The Sages resolved it based on that which Rav Yehuda says that Rav says: All references to coinage mentioned in the Torah refer to Tyrian coinage, whereas all mentions of coinage in the statements of the Sages refer to provincial coinage. Therefore, a person who slaps another is fined a provincial sela, worth half of a dinar.

Following the verdict, that man who was slapped said to Rav Yosef: Since the fine is only half a dinar, I do not want it, as it is beneath me to collect such an amount. Instead, let him give it to the poor. Then he retracted his decision, and said to Rav Yosef: Let him give it to me, and I will go and sustain [ve’avri] myself with it.

Rav Yosef said to him: Since you already committed to give it to charity, the poor have already acquired it and it now belongs to them. And although there are no poor people here to acquire it, we, the court, are the hand, i.e., the legal extension, of the poor. We represent them, as Rav Yehuda says that Shmuel says: Orphans

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

BavaKamma 36b examines competing claims among owners injured by a repeatedly goring ox, weighing Rabbi Yishmael's creditor theory against liability from seizure as a paid bailee.