Bava Kamma 004

7:
We have been following the three conditions laid down in the second clause of our mishnah concerning the viability of a suit for damages. You will recall that the first condition was that the damaged property must belong to a lay person: that it cannot be hekdesh which is subject to the laws of sacrilegious embezzlement (me'ilah). The second condition was that the owner of the damaged property must be a Jew. We now can turn to the third condition.

8:
The first two conditions were concerned with the damaged property itself; this third condition is concerned with the owner of the cause of the damage. It will be convenient when discussing this condition to refer to the first item in the previous mishnah and to assume that the cause of the damage is an ox, as does the Gemara.

9:
It would be futile to explain that the ox that caused the damage must belong to someone: how can the plaintiff sue for damages if she does not know who to sue? In the Gemara [BK 13b] the Amora Rav Yehudah suggests that the mishnah is speaking of a situation in which two owners of oxen argue which of the oxen caused the damage in question. But the Gemara also rejects this suggestion: after all, in this scenario the ox does have an owner, it is just not known which of two (or more) owners is the one to be sued.

10:
So the Gemara accepts that our mishnah must be referring to an ox which is truly ownerless. The Gemara rejects the idea that our mishnah refers to the ox that was injured as being the ownerless one: that too is ridiculous, for if the injured ox was ownerless there is no one to sue the owner of the attacking ox! But, says the Gemara, it is not more reasonable to assume that the ownerless ox must be the one that attacked: in such a case the injured party can make good at least some of his loss by taking possession of the ownerless ox!

11:
The Gemara now suggests another scenario: after the ownerless ox had attacked David's ox Sara came along and claimed ownership – which she is entitled to do because the ox has no owner, it is hefker. David cannot sue Sara because when the damage was done she was not the owner of the ox. Another possible scenario that could refer to our attacking ox: at one stage the ox did belong to Sara but before the animal attacked Sara had already declared her ox to be hefker (or alternatively, she had donated it to the Bet Mikdash).

12:
All this sounds very complicated, so let Rambam explain this part of our mishnah: the attacking ox must belong to someone specific.

The property which caused the damage must belong to some specific person. But if two owners both claim that it was the ox of the other that caused the damage (and it is not possible to identify the offending ox); or if someone has declared his ox to be abandoned [hefker] and it subsequently attacked and does not therefore have a specific owner at the time of the attack – the owner of that property cannot be sued. And if another person took possession of that ox [which was hefker] after it had attacked he has legally assumed ownership [but cannot be sued for the damage].

13:
The last clause of our present mishnah rules that

If David's ox ambles into Sara's homestead and sustains injury David cannot sue Sara for damages: Sara can say, as it were, "What was your ox doing in my property?" (However, if it is Sara who injures David's ox she must pay damages, for David can legitimately claim that while Sara had the right to 'escort the ox off the premises' she had no right to cause it damage.)

14:
Or property owned jointly by the plaintiff and the defendant. Actually, it is not clear whether this phrase should be read as a continuation of the preceding phrase or as the beginning of the next phrase.

If the reading should be – as understood in my translation of the mishnah – then

The defendant may be liable for damage caused anywhere except on his own property or property owned jointly by him and the the plaintiff.

In other words, Sara can sue David for damage caused by his ox only if the damage was caused outside David's property and outside any property that she and David own jointly.

15:
If the disputed phrase must be understood as a preamble to what follows the reading would have to be:

The defendant may be liable for damage caused anywhere except on his own property; but [if the damage was caused] in property owned jointly by the plaintiff and the defendant the perpetrator is liable to make restitution…

In other words, David can sue Sara for damage caused by her ox in property owned by them jointly.

16:
If he has caused damage the perpetrator is liable to make restitution. If all the conditions outlined in our mishnah were met then the perpetrator can be sued for damages:

• Neither the damaged property nor the cause of the damage were hekdesh;
• The damaged property belonged to a Jew;
• The owner of the offending animal is identifiable;
• The damage was caused in a place that did not belong to the plaintiff.