Bava Kamma 031

נושא: BK

BET MIDRASH VIRTUALI

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If a Jew's ox gores an ox belonging to hekdesh, [or if] a hekdesh ox gores the ox of a Jew [the owner] is excused because it says, "his neighbour's ox" and not an ox of hekdesh. If a Jew's ox gores the ox of a non-Jew [the owner] is excused and if the ox of a non-Jew gores the ox of a Jew, be it 'docile' or 'vicious' [the owner] must pay full damages.

1:
We have explained the term hekdesh on several occasions. For the sake of convenience let us here just very briefly offer a description. Property – animate or inanimate, real estate or portable, vegetable or mineral – that has been donated to the Bet Mikdash in Jerusalem belongs to God, and is administered by the Temple Treasurer on behalf of heaven, as it were.

2:
If a Jew's ox gores the ox of another Jew the matter will be adjudicated in a Bet Din and the offending party will be required to pay compensation according to law. However, if the 'other' ox did not belong to another Jew but belonged to the Bet Mikdash can the Temple Treasurer take the owner of the attacking animal to court?

3:
Our mishnah says that he can not. We must remind ourselves of something that we learned at the very beginning of our study of this tractate. In the second mishnah of the very first chapter [BK003] we found a list of conditions that must be fulfilled in order for a plaintiff to offer a successful plea. One of those conditions was:

The damaged property must belong to Jews.

This ruling is based on what is written in the Torah [Exodus 21:35]:

When someone's ox injures his neighbour's ox…

and God is not anyone's neighbour! Now, this works both ways, as our present mishnah points out. Not only can a Jew not sue God for damages in court but neither can God (in the person of the Temple Treasurer) sue a Jew for damages sustained.

4:
We now come to the second clause of our mishnah. The sages understood that when the Torah designates someone as 'neighbour' this refers to another Jew. (The sages understood the well-known command of the Torah [Leviticus 19:18] "Love your neighbour as yourself" as meaning "Love your fellow-Jew as yourself.") So, logic would suggest that the same argument as is used in the case of hekdesh could be used in regard to a non-Jew: since a non-Jew does not come within the halakhic category of 'neighbour' he cannot sue for damages in a Bet Din nor can he be sued.

5:
But our mishnah rules otherwise, and this ruling is very problematic from the ethical point of view. Our mishnah rules that if the ox of a Jew gores the ox of a non-Jew the Jewish owner cannot be sued by the non-Jew (because he does not come within the category of 'neighbour'). However, if the ox of a non-Jew gores the ox of a Jew the Jew can sue the non-Jew in a Bet Din!

6:
Much ink has been spilled concerning this blatant discrimination. I checked various translations of our present mishnah and found that many of them 'interpret' rather than translate. One, for instance, refers to a "Canaanite" rather than to a non-Jew – presumably to suggest that the ruling only applied to a specific group of people and a specific time. Another translation offers 'heathen' instead of 'non-Jew'. When we studied tractate Avodah Zarah we noted that the animus of Jewish legislation against non-Jews was directed against those who practiced idolatry.

7:
The Gemara [BK 38a] turns summersaults in order to explain the ethical dilemma. One sage quotes Habakuk 3:6

He [God] stood and measured the earth; he beheld and drove asunder the nations.

He explains that this verse teaches that God beheld the seven commandments which were accepted by all the descendants of Noah, but since they did not observe them, God rose up and declared them to be outside the protection of the civil law of Israel (with reference to damage done to cattle by cattle).

8:
Against this rather spurious interpretation the Gemara brings the opinion of Rabbi Me'ir concerning righteous gentiles in general:

Rabbi Me'ir used to say, "Whence can we learn that where a gentile occupies himself with the study of the Torah he equals [in status] the High Priest? We find it stated [Leviticus 18:5] if a man observes [God's commandments] he shall live in them; it does not say "priests, Levites and Israelites", but "a man", which shows that if even a gentile occupies himself with the study of the Torah he equals [in status] the High Priest."

9:
Most interestingly, the Gemara also quotes the following barayta:

The Government of Rome sent two commissioners to the Sages of Israel with a request to teach them the Torah. It was accordingly read to them once, twice and thrice. Before taking leave they made the following remark: We have gone carefully through your Torah, and found it correct with the exception of this point: your saying that if an ox of a Jew gores an ox of a non-Jew there is no liability, whereas if the ox of a non-Jew gores the ox of a Jew, whether 'docile' or 'vicious', compensation has to be paid in full. In no case can this he right. For if the implication of 'his neighbour' has to be insisted upon, why then in the case of an ox of a non-Jew goring an ox of a Jew should there also not be exemption? If [on the other hand] the implication of 'his neighbour' has not to be insisted upon, why then even in the case of an ox of a Jew goring an ox of a non-Jew, should there not be liability? We will, however, not report this matter to our Government.

This last sentence sounds as if the Roman commissioners were more decent than the sages!

10:
The medieval commentators and codifiers did their best to re-interpret the ruling of our mishnah, as it were, because they recognized that the ruling "is undoubtedly against the principles of Jewish moral law." In his great code Mishneh Torah [Property Damages 8:5] Rambam brings the ruling as it is and 'explains' that it serves to encourage the non-Jews to watch their animals carefully. Rabbi Ya'akov ben-Asher in his code Arba'ah Turim [Ḥoshen Mishpat 406] refers the ruling to the Samaritans (only).

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