Bava Kamma 023

Two docile oxen injure each other: half-damages are to be paid for the difference. If both are vicious full damages are to be paid for the difference. If one were docile and the other vicious: if the vicious [ox attacks] the docile full damages are to be paid for the difference; if the docile [ox attacks] the vicious one half damages are to be paid for the difference. Similarly, when two human beings injure each other they pay full damages for the difference. If a human being [attacks] a vicious [animal] or a vicious [animal attacks] a human being full damages are to be paid for the difference. If a human being [attacks] a docile animal or a docile [animal attacks] a human being: where a human being attacks a docile [animal] full damages are to be paid for the difference; where a docile [animal attacks] a human being half-damages are to be paid for the difference. Rabbi Akiva says that when even a docile [animal] injures a human being full damages must be paid for the difference.

1:
So far in our discussions concerning compensation for injuries inflicted and sustained we have chosen the simple situation in which A inflicts injury on B. In such a simple situation the percentage of compensation to be paid would depend only on the status of A. If A is mu'ad [vicious] compensation will have to be one hundred percent of the damage inflicted; if A is tam [docile] then compensation will be set at fifty percent of the damage inflicted. (See BK006 for a description of these two statuses.)

2:
Our present mishnah, however, is concerned with a situation which is usually more prevalent: A inflicts injury on B and B retaliates by inflicting injury on A. The first clause of our mishnah takes the classic example of oxen (because, as we have mentioned on many occasions) oxen are the basis of the Torah's legislation in such matters.

David has an ox which has never shown any signs of viciousness; Sarah has an ox which also has never shown any signs of viciousness. Thus these two oxen both enjoy the legal status of 'docile'. Nevertheless, they get into a fight. (Please note, which of them 'started' the fracas is irrelevant from the halakhic point of view.) David's ox was originally worth 500 dinars, but after being injured by Sarah's ox it is now worth only 400 dinars. Sarah's ox was originally worth 400 dinars, but after being injured by David's ox it is now worth only 200 dinars. David has sustained a loss of 100 dinars whereas Sarah has sustained a loss of 200 dinars. The difference is therefore 100 dinars (200 dinars less 100). Since both animals enjoyed the status of 'docile' David must compensate Sarah with a payment of 50 dinars, since she had sustained the greater loss.

3:
Of course, if both animals had been of the status of 'vicious' then David would have had to compensate Sarah by payment of the full 100 dinars loss that she sustained.

4:
Now let's make the situation more complicated: David's ox is 'docile' and his loss through the attack is 400 dinars. Sarah's ox is 'vicious' and her loss is 100 dinars. David should compensate Sarah to the extent of 50 dinars and Sarah should compensate David to the extent of 400 dinars! Therefore Sarah must compensate David by payment of 350 dinars.

5:
The same reasoning applies to human beings, of course. Sam and Joel get into a brawl and each injures the other. The first thing that the judges must do is to assess the 'value' of the injuries sustained by each. In earlier times this was relatively simple: how much would Sam have fetched on the slave market before his injury and how much would he fetch now? The difference between the two sums is the monetary extent of his injuries. The next thing that the judges must know, of course, is what we have established in BK 014:

So both Sam and Joel will have to compensate each other to the full extent of the injuries that each one sustained at the hand of the other. It will just be a case of determining which of the two sustained the greater loss.

6:
Let us now consider the differing view of Rabbi Akiva.

Tanna Kamma holds that

Tanna Kamma holds that a docile animal always pays only half damages. Rabbi Akiva holds that when a docile animal attacks a human being full damages must be paid.

The opinion of Tanna Kamma is self-evident. In order to understand the opinion of Rabbi Akiva we must consider the biblical source for this situation:

When an ox [with the status of docile] gores a man or a woman to death, the ox shall be stoned and its flesh shall not be eaten, but the owner of the ox is not to be punished. If, however, that ox has been in the habit of goring, and its owner, though warned, has failed to guard it, and it kills a man or a woman - the ox shall be stoned and its owner, too, shall be put to death. (If ransom is laid upon him, he must pay whatever is laid upon him to redeem his life.) So, too, if it gores a minor, male or female, [the owner] shall be dealt with according to the same rule. [Exodus 21:28-31]