Bava Kamma 028

נושא: BK

BET MIDRASH VIRTUALI

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An ox gores four or five oxen one after another; [the owner] pays the last of them. If anything is left he recompenses the one before [the last]. If anything [more] is left he recompenses the next previous one. [Thus] the last of all has the advantage. [This is] the opinion of Rabbi Me'ir. Rabbi Shim'on says: If an ox worth two hundred gores an ox worth two hundred but the carcass is worthless each [owner] takes one talent. If it gores [yet] another ox worth two hundred the last takes one talent and the previous one fifty dinars and the two prior ones one golden dinar.

1:
Our mishnah looks complicated. And it is! Many details that are supplied by the Gemara are missing in the text of the mishnah which might have made it easier for us to understand.

2:
Let us start with the opinion of Rabbi Me'ir (which is not accepted halakhah). We must understand that the ox that is causing so much injury to other oxen enjoys the status of 'docile'. This must be so because, as Rambam points out so laconically in his commentary on our present mishnah:

All these laws [apply] when the ox is 'docile' and we have a rule that it pays from its body as we have explained [see BK 3:9, BK 024]. But if it were 'vicious' we wouldn't need any of this because it pays full damages from [its owner's] property [and not from its body].

So the problem addressed by our mishnah is how does one pay half-damages from the body of an ox that is guilty of multiple gorings? (We have mentioned several times that "from the body" can mean the animal's carcass or its value when sold off.)

3:
We must assume that the ox in question gored one ox, was then seen to react in a docile manner with other oxen until it gored yet another ox – in a cycle that repeats itself several times. In this manner the ox never gets into court to be declared 'vicious'.

4:
The question we must ask of Rabbi Me'ir is, of course, why should the last owner whose ox was attacked get half-damages when the owners of the previously gored oxen do not necessarily get recompense? The Gemara [BK 36a-b] addresses this issue:

Who is the author of our mishnah? It is in accordance neither with the view of Rabbi Yishma'el nor with that of Rabbi Akiva! For if it is in accordance with Rabbi Yishma'el, who maintains that claimants of damages are like any other creditors, how can it be said that "the last of all [the creditors] has the advantage [by being recompensed first]? It should be "the first of all has the advantage!" If, on the other hand, it is in accordance with Rabbi Akiva who holds that the ox becomes the joint property of the claimant and the defendant, how can it be said that "If anything is left he recompenses the one before the last" [and so on, backwards]? Should it not be 'compensation will be made proportionately for each incident'?

The opinion of Rabbi Akiva that the goring ox becomes the joint property of both the claimant and the defendant is based on the ruling of the Torah [Exodus 21:35] which we encountered in BK 024:

They shall sell the live ox and divide the money and also [the value of] the dead one shall they divide [between them].

5:
Our mishnah is, in fact, in accord with the view of Rabbi Yishma'el, it is now necessary to explain how that can be applied to the situation in hand.

The mishnah is indeed in accordance with Rabbi Yishma'el who holds that claimants of damages are like any other creditors. As to the objection to the statement "the last of all has the advantage"… it can be argued that we deal here with a case where each plaintiff has in turn seized the goring ox for the purpose of getting paid from its body, in which case each has in turn acquired the status of a 'paid bailee', liable for subsequent damages done by it.

The scenario is as follows: David's ox runs amuck and gores Sam's ox. Sam manages to catch David's ox (which subsequently manages to escape to continue its nefarious ways). By catching the ox Sam has assumed a legal status in regard to it: that of a 'paid bailee'. The term 'bailee' is halakhic legalese for "someone who has the property of another legally in his possession". The Torah [Exodus 22:6-14] recognizes four such bailees:

Leah does Sarah a favour by looking after her bicycle while Sarah does some shopping.
Michael babysits for Sarah at an agreed rate.
Joel hires a car from a car-hire company.
Sarah borrows a book from Rachel.

In each of these cases the 'bailee' has someone else's property in his possession. The extent of the responsibility of a 'bailee' for any damage caused by or to the property in question increases in each case itemized above: when I do someone a favour there is almost no responsibility (except in a case of gross negligence); when I borrow something I am completely responsible for its return sound and whole.

6:
In our scenario Sam became a 'paid bailee' (item 2 above) and therefore shares some responsibility for the later damage caused by David's ox. The same argument applies down the line until we reach the last owner who enjoys preferential treatment because he is last in the queue.

7:
Let us say that David manages to sell his ox for 300 dinars. Let us say that the last ox to be gored was worth 200 dinars. That means that its owner will get 100 dinars, leaving David with 200 dinars in hand. The ox of the previous owner was worth 300 dinars so he will get 150 dinars leaving David with 50 dinars in hand. The process continues until there is no more money from the sale of David's ox available.

To be continued.

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