Talmud - Bava Kamma 44b בבא קמא מ״ד ב׳

The Gemara asks: But still, is it not a case of pebbles? Is this case not analogous to damage caused by pebbles inadvertently propelled from under the feet of an animal while it is walking, which is not considered damage caused directly by the ox, but rather, damage caused indirectly? Ransom is not imposed for such indirect killing. Rav Mari, son of Rav Kahana, said: It is a case where the wall gradually gave way under the pressure applied by the ox, and so while the ox was still pushing the wall it collapsed and killed the person.

It is taught in a baraita in accordance with the opinion of Shmuel, and this baraita is a conclusive refutation of the opinion of Rav: There are cases where the ox is liable to be put to death and the owner is liable to pay ransom, and there are cases where the owner is liable to pay ransom but the ox is exempt from being put to death, and there are cases where the ox is liable to be put to death but the owner is exempt from paying ransom, and there are cases where they are exempt from this punishment and from that one.

How so? In a case where a forewarned ox kills a person intentionally, the ox is liable to be put to death and the owner is liable to pay ransom; if a forewarned ox kills unintentionally, the owner is liable to pay ransom but the ox is exempt from being put to death; if an innocuous ox kills intentionally, the ox is liable to be put to death but the owner is exempt from paying ransom; and if an innocuous ox kills unintentionally, they are exempt from this punishment and from that one. The baraita states explicitly that although a forewarned ox that kills a person unintentionally is exempt from being put to death, its owner is liable to pay ransom, in accordance with Shmuel’s opinion, and in contrast with Rav’s opinion.

The baraita adds: And for injuries caused by an ox unintentionally, from which the victim is not killed, Rabbi Yehuda deems the owner liable to pay for the injury and Rabbi Shimon exempts him.

The Gemara asks: What is the reason for the opinion of Rabbi Yehuda? The Gemara answers: He derives the halakha with regard to injury caused by the ox from the halakha with regard to its owner’s ransom payment. Just as with regard to its owner’s ransom payment he is liable even if the ox gores unintentionally, so too, with regard to injuries he is also liable even if it gores unintentionally.

And Rabbi Shimon derives his opinion from the halakha of the putting to death of an ox by the court: Just as with regard to its being put to death, if it kills a person unintentionally it is exempt, so too, if it causes injuries unintentionally its owner is exempt from payment.

The Gemara questions the above explanation: And let Rabbi Yehuda also derive the halakha concerning an ox unintentionally causing injury from the halakha of its being put to death. The Gemara answers: In his opinion, we can derive a halakha with regard to payment for injury from the halakha of ransom, which is another halakha with regard to payment. But we cannot derive a halakha with regard to payment from a halakha concerning death.

Conversely, the Gemara asks: And let Rabbi Shimon also derive the halakha here from the halakha concerning its owner’s ransom payment. The Gemara answers: We can derive a halakha with regard to the liability of an ox from a halakha with regard to the liability of an ox, to the exclusion of the payment of ransom, which is the liability of the owner. Compensation for injury is considered the ox’s liability, as it is the ox that caused the injury, whereas the ransom paid is for the owner’s atonement. Therefore, the halakha concerning injury cannot be derived from the halakha of ransom, as they are dissimilar.

§ The mishna teaches that if an ox intended to kill another animal but killed a person, or if it intended to kill a person for whom it would not be liable to be put to death but killed a person for whom it would be liable, it is exempt. The Gemara infers: If the ox intended to kill this person, for whom it would be liable, but killed that person instead, it is still liable. Accordingly, the mishna is not in accordance with the opinion of Rabbi Shimon, as it is taught in a baraita that Rabbi Shimon says: Even if the ox intended to kill this person but killed that person, it is exempt.

The Gemara asks: What is the reason for the opinion of Rabbi Shimon? The Gemara answers that it is because the verse states: “The ox shall be stoned, and its owner also shall be put to death” (Exodus 21:29); the juxtaposition of the ox and its owner indicates that as the death of the owner, i.e., a person, for killing another person, so is the death of the ox for killing a person. In other words, the two halakhot are applied in the same circumstances. Specifically, just as the owner, i.e., a person, is not liable to receive court-imposed capital punishment unless he intends to kill the person whom he ultimately kills, so too, an ox is not put to death either, unless it intends to kill the one whom it ultimately kills.

The Gemara asks: And with regard to the owner himself, from where do we derive that he is not liable unless he killed the one whom he intended to kill? It is as the verse states: “And he lay in wait for him, and rose against him, and struck him mortally and he died” (Deuteronomy 19:11). From the term “for him,” Rabbi Shimon derives that the killer is not liable unless he intends to kill him, i.e., the one whom he ultimately killed.

The Gemara asks: And what do the Rabbis, who deem the killer liable in that case and who therefore disagree with Rabbi Shimon’s opinion, do with this phrase: “And he lay in wait for him”? How do they interpret it? The Gemara answers that the Sages of the school of Rabbi Yannai say that this phrase excludes from liability one who throws a stone into an area where there are several people, some of whom are people for whom he would not be liable to receive court-imposed capital punishment, e.g., gentiles, and a stone killed a person for whom he would receive court-imposed capital punishment.

The Gemara asks: What are the circumstances of this case? If we say that there are nine gentiles in the crowd and one Jew among them, even without the verse derive the exemption from the fact that a majority of them are gentiles. Alternatively, even if half the people are gentiles and half are Jews, derive the exemption from the principle that when there is uncertainty concerning capital law, the halakha is to be lenient.

The Gemara answers: No, the verse is necessary in a case where there are nine Jews and one gentile. Although a majority of them are Jews, the thrower is exempt from liability because there is one gentile among them who is considered fixed in his place, and the legal status of any item fixed in its place is like that of an uncertainty that is equally balanced; and when there is uncertainty concerning capital law the halakha is to be lenient. This is what the Rabbis derive from the phrase: “And he lay in wait for him.”

MISHNA: With regard to an ox belonging to a woman, and similarly an ox belonging to orphans, and an ox belonging to orphans that is in the custody of their steward, and a desert ox, which is ownerless, and an ox that was consecrated to the Temple treasury, and an ox belonging to a convert who died and has no heirs, rendering the ox ownerless; all of these oxen are liable to be put to death for killing a person. Rabbi Yehuda says: A desert ox, a consecrated ox, and an ox belonging to a convert who died are exempt from being put to death, since they have no owners.

GEMARA: The Sages taught: In the passage discussing an ox that kills a person (Exodus 21:28–32), the Torah states: “An ox,” “an ox,” repeating this word seven times, to include an additional six cases, in addition to the classic case of an ox goring and killing a person. They are: An ox belonging to a woman, an ox belonging to orphans, an ox belonging to orphans that is in the custody of a steward, a desert ox, a consecrated ox, and an ox belonging to a convert who died and has no heirs. Rabbi Yehuda says: A desert ox, a consecrated ox, and an ox belonging to a convert who died and has no heirs are all exempt from being put to death, since they have no owners.

Rav Huna says: Rabbi Yehuda would deem the ox exempt even if it gored and killed and its owner ultimately consecrated it, or if it gored and he ultimately renounced his ownership over it, since at the time of the trial in court the ox does not have an owner.

The Gemara asks: From where did Rav Huna derive this assertion? From the fact that Rabbi Yehuda teaches two cases, a desert ox and an ox belonging to a convert who died and has no heirs. What is the legal status of an ox belonging to a convert who died? Since he has no heirs it is considered to be an ownerless ox. Accordingly, the case of a desert ox is the same as the case of an ox belonging to a convert who died and has no heirs, and it does not seem necessary for the baraita to state both cases. Rather, does it not teach us this: That even if the ox gored and he ultimately consecrated it, or, if it gored and he ultimately renounced ownership over it, it is exempt, just as in a case where a convert’s ox gores and subsequently the owner dies? The Gemara concludes: Indeed, conclude from the baraita that this is the opinion of Rabbi Yehuda.

This assertion is also taught in a baraita: Moreover, Rabbi Yehuda said that even if it gored and he ultimately consecrated it, or if it gored and he ultimately renounced ownership over it, the ox is exempt, as it is stated: “And warning has been given [vehuad] to its owner…and it killed…the ox shall be stoned” (Exodus 21:29). It is derived from here that the owner of the ox is exempt unless the ox’s status as the owner’s property at the time of the death of the victim and at the time of the owner’s standing trial is the same, i.e., that the ox has an owner.

The Gemara asks: But don’t we require that the ox’s status be the same at the time of the verdict as well? And isn’t the phrase “the ox shall be stoned” also referring to the verdict? Rather, emend the statement and say that the owner of the ox is exempt unless the ox’s status as the owner’s property at the time of the death of the victim and at the time of the owner’s standing trial and at the time of the verdict are identical as one.

MISHNA: With regard to an ox that is leaving court to be stoned for killing a person and its owner then consecrated it, it is not considered consecrated, i.e., the consecration does not take effect, since deriving benefit from the ox is prohibited and the ox is therefore worthless. If one slaughtered it, its flesh is forbidden to be eaten and it is prohibited to derive benefit from it. But if its owner consecrated it before its verdict the ox is considered consecrated, and if he slaughtered it its flesh is permitted.

If the owner of an ox conveyed it to an unpaid bailee, or to a borrower, or to a paid bailee, or to a renter, and it caused damage while in their custody, they enter into the responsibilities and liabilities in place of the owner. Therefore, if it was forewarned the bailee pays the full cost of the damage, and if it was innocuous he pays half the cost of the damage.

GEMARA: The Sages taught: With regard to an ox that killed a person, if its owner sold it before its verdict,

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

BavaKamma 44b explores liability for an ox killing a person, distinguishing intentional versus unintentional goring and when ransom payments or execution of the ox apply.