Bava Kamma 036

1:
We have learned several times now that an ox that has gored at least one person to death must be killed. But the decision to take the animal's life must be through sentencing by a Bet Din.

2:
Human beings being what they are there must have been a tendency among the owners of such animals to avoid as best they could such a fate for their property. Mishnah 8 brings two such stratagems. An owner might suddenly announce that he is dedicating this animal to the Bet Mikdash. In other words, the animal is hekdesh. (We have explained this term often. See, for example, BK 003.) Our mishnah rules that if this dedication is made before the court passes sentence on the animal the dedication is valid: the animal becomes the property of the Bet Mikdash and the court does not have the right to sentence it. (If the animal is killed nevertheless the court is guilty of sacrilege and a special offering, called Me'ilah, must be offered.) However, if the court has already passed sentence the owner of the animal cannot dedicate it because from the moment of the sentence being pronounced the animal no longer belongs to him.

3:
Another stratagem might be the slaughter the animal so that the meat can be sold. The same logic applies: if the animal was slaughtered (by a shochet, a ritual slaughterer) before sentence was passed the meat is kosher. However, if the court has already passed sentence the rule of the Torah [Exodus 21:28] must prevail:

4:
We now come to Mishnah 9. This mishnah deals with two separate issues. The first concerns what happens if a killer ox is transferred to another person by means other than sale or inheritance. The other issue is the legal standing of the owner if he had taken precautions to guard his dangerous animal but it nevertheless managed to escape.

5:
How can responsibility for property be transferred to another person without sale or inheritance? We have already touched upon this issue (in BK 028) when we discussed the halakhic status of a bailee. The English term bailee is a rather inappropriate descriptor for "someone who has the property of another legally in his care". The Torah [Exodus 22:6-14] recognizes four such bailees:

1. Leah does Sarah a favour by looking after her bicycle while Sarah does some shopping.
2. Michael babysits for Sarah at an agreed rate.
3. Joel hires a car from a car-hire company.
4. 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.

6:
Our mishnah rules that if the owner of an ox transfers his ox into the keeping of one of the bailees that bailee has now accepted full responsibility for the animal, in place of the owner. Our mishnah even itemizes the four kinds of bailee:

• Volunteer bailee refers to the first example given above, where someone does the original owner a favour by looking after their property when no real benefit for the volunteer is involved.
• Borrower refers to the last item in our list of examples: the person borrowing the article has all the benefit whereas the original owner has none.
• A paid bailee refers to the second item in our list: the bailee accepts responsibility for the article and gets paid for doing so.
• The lessee is, of course, someone who pays for the use of an article – the third item in our list of examples.

7:
So the bailee must assume full responsibility for the behaviour of the animal that is in his or her charge. If, during the period that the animal is in the custody of the bailee it causes damage the bailee must pay just as if he were the original owner: in the case of an animal that is declared 'vicious' by the court the bailee must pay full damages and in the case of a 'docile' animal causing damage he must pay half damages.

To be continued.