Bava Kamma 032

1:
Our mishnah consists of four clauses. The first is concerned with the liability (or otherwise) of certain persons who are not considered to be legally responsible in the eyes of the law. The second clause describes legal procedure when an ox belonging to such a person gores. The third clause is concerned with the status of the ox should the owners become legally responsible once again. The last clause is concerned with the fate of an ox which had been trained to kill.

2:
The sages recognize three persons who are not responsible for their actions under law. The first is the deaf-mute. This refers to someone who was born without the faculties of hearing and speech. Such a person was considered ineducable and therefore could not be held responsible for their actions under law. The second is someone who is mentally defective. As long as they are non compos mentis they are not held to be responsible for their actions under law. The third person who is not held to be responsible under law is the minor: this refers to a girl who is not yet 12 years old or a boy who is not yet 13 years old.

3:
The first clause of our mishnah lays down the rule that if the ox of a 'normal' person gores the ox of one of those whose legal status has just been described the owner may be sued in court: he bears full responsibility regardless of the legal status of the plaintiff. However, if it is one of those who are not legally responsible for their actions who is the defendant there is no case to answer since they cannot be held to be responsible for their acts of commission or of omission.

4:
The second clause of our present mishnah is concerned with a situation in which it is necessary for the Bet Din to take steps to declare 'vicious' the ox of a deaf-mute, a mentally defective or a minor. Clearly, they cannot be 'warned' that they must take steps to restrain their ox. In such a case the court appoints a legal guardian who task it is not only to administer their affairs but also to bear legal responsibility for their property. In his commentary on our present mishnah Rabbi Ovadya of Bertinoro points out that a guardian is only appointed when the animal is to be declared 'vicious'; as long as the animal enjoys the status of 'docile' the court does not appoint a legal guardian.

5:
The third clause of our present mishnah is concerned with a situation in which someone who was previously not held to be responsible in the eyes of the law suddenly regains the status of 'normality'. For example, what happens if someone who was held to be mentally defective regains their full faculties? Or, more usually, what happens when a minor reaches the age of legal responsibility? According to Rabbi Yosé no change in the status of the ox is required: it was declared 'vicious' by the court and remains so until its status can be reversed according to one of more of the conditions listed in the fourth mishnah of Chapter Two. However, Rabbi Me'ir, whose opinion is accepted halakhah, holds that since the owner has entered a new legal status everything reverts back to its pristine state: his ox is now held to be 'docile' until it is declared 'vicious' because of its actions.

6:
The last clause of our mishnah is concerned with an ox which had been released from service in a circus. I refer, of course, to the Roman circus, where men and animals were pitted against each other in a fight to the death. Oxen (perhaps bulls) were trained to kill. By a very exact reading of the text of the Torah the sages decided that such an ox should not be killed if it killed a human being. The Torah [Exodus 21:28-30] says:

The details of this passage are the subject of the next mishnah. What concerns us at this present juncture is the fact that the Torah condemns an ox which "gores". In other words, a vicious streak has been discovered in this ox; its owner has been warned to keep it under restraint but the vicious ox kills a human being. The sages note that the Torah says that the ox "gores" and they understand this as excluding an ox which has been taught to gore, for service in a circus or the like. Such an ox has not killed because of some natural viciousness in its makeup but because it has been trained by human beings to do just that.

7:
In his commentary of this last clause of our present mishnah Rambam enlarges the scope of this ruling. He refers the issue to

In the previous shiur we had the case of the non-Jew who can be sued in a Jewish court by a Jew but himself cannot sue a Jew in a Jewish court.

Jim Feldman writes:

How is it that all of the rules about not oppressing "the stranger that is in thy midst" do not apply? The argument that "neighbor" means "Jew" is specious.

I respond:

I think that Jim here is charging into an open door. Of course the argument is specious. In the shiur itself I said that it is specious and cannot be justified; I also pointed out that the sages in the Gemara were most concerned with this ruling; I also mentioned that many of the sages of the middle ages sought (and found) halakhic justification for abrogating the rule. So we are all in agreement. (Jim's reference to the rules about loving the stranger is not helpful in this case, because the sages understood the "stranger" referred to in the biblical text to be a convert to Judaism.)