Bava Kamma 025

נושא: BK

BET MIDRASH VIRTUALI

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There are [situations in which a person will be] liable for acts of his ox but excused [for the same actions] acts done by himself. [And vice versa, there are situations in which a person will be] excused for an act of his ox but liable himself for [the same] act. If his ox shames [someone] it is excused but if [the owner] himself shames [someone] he is liable. If his ox blinds his servant's eye or knocks out his tooth he is excused; but if [the owner] himself blinds his servant's eye or knocks out his tooth he is liable. If his ox does mayhem on [the owner's] father or mother it is liable, but if [the owner] himself does mayhem on his father or mother he is excused. If his ox sets light to a haystack on Shabbat it is liable, but if [the owner] himself sets light to a haystack on Shabbat he is excused because he is [now] in peril of his life.

1:
In our present mishnah it is important to note that the terms 'liable' and 'excused' refer to payment of damages (and not to the other possible legal consequences of the same actions). The first clause of our mishnah states quite clearly the general rule: that it is quite possible that a person will have to pay damages for injuries and damage caused by his ox even in situations where he himself would not have to pay if he were the perpetrator. And the opposite is also true: it is quite possible that a person will not have to pay damages for injuries and damage caused by his ox even in situations where he himself, were he the perpetrator, would indeed have to pay.

2:
Our mishnah now gives examples (and it is possible that these 'examples' exhaust the legal possibilities). We shall learn in Chapter Eight that 'shame' is one of five matters for which the perpetrator may be required to indemnify the victim apart from the bodily or material damage inflicted. This means that if I cause someone to be shamed in public by some act of mine he may claim damages from me.

3:
Let's say that David's ox attacks Sarah and in doing so one of the animal's horns knocks off Sarah's head-covering. This happens in the local market which is full of people at that time. In Tractate Ketubot [Ketubot 7:6] we are told that there is a concept called Dat Yehudit – 'Jewish Woman's Religion'. These are actions which no self-respecting woman would do in public. One of these actions is that she would never appear in public with her hair uncovered. So, if David's ox knocks Sarah's hat off her head she will feel herself to have been publicly shamed. But, of course, an ox is not aware of the meaning of 'shame' so there can have been no malice of forethought in its action and it is excused. If David himself knocks of Sarah's hat he will have to indemnify her for the shame he has caused her because he is well aware of Dat Yehudit – and might even divorce his own wife if she contravenes those rules.

4:
The Torah [Exodus 21:26-27] rules as follows:

If a person strikes his manservant of his maidservant in the eye and destroys it he must manumit them in lieu of their eye. And if he knocks out his manservant's tooth or his maidservant's tooth he must manumit them in lieu of their tooth.

The servants referred to in these verses are 'Canaanite' servants (not Jewish servants, which are a different kettle of fish altogether.) A Jew is forbidden to keep a non-Jewish slave in his possession for more than one year. At the end of the year the slave must choose between being sold off to some non-Jew or undergoing conversion to Judaism. If he chooses the latter he has the status of a 'Canaanite' servant. [For more details see Berakhot 048]. If David's ox knocks out the eye or tooth of his Canaanite servant he will not have to pay damages; but if David himself knocks out the eye or the tooth of one of his Canaanite servants he will have to set him free.

5:
The Torah [Exodus 21:15] legislates as follows:

One who strikes his father or mother shall surely be put to death.

If David's ox gores David's father or mother then David will have to indemnify his parent for the action of his ox. However, if David himself strikes his parent causing "grievous bodily harm" he will not have to pay up! We shall see why in a moment.

6:
If David's ox sets light to a haystack on Shabbat David will have to indemnify the owner of the haystack. The curious and the incredulous will ask themselves how an ox can set fire to a haystack. Let me remind us all that in BK011 we saw how a dog could perform the same feat! However, if David himself sets light to the same haystack on Shabbat he will not have to pay up!

7:
The reason why David will not have to indemnify in the last two cases is very simple. According to Torah law, in both cases (striking a parent and setting light to a haystack on Shabbat) the perpetrator, if found guilty by a duly constituted court of law will have to forfeit his life. We saw in the verse quoted above that striking a parent is a capital crime; so is setting something alight on Shabbat.

8:
This is the meaning of the last words of our present mishnah: "because he is [now] in peril of his life." A person who has been convicted of a capital crime is excused all other payments that may derive from the same act. We do not do a person to death and also require them to pay a fine!

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