Bava Kamma 013

1:
You will recall that in mishnah 4 of chapter 1 [BK006] we learned that

There are five kinds of presumed … vicious animals… The tooth is considered to be vicious for eating suitable food; The foot is considered to be vicious for breaking things as it goes on its way … an ox doing damage in the private property of the wronged person … are all to be considered vicious.

We see here that an ox causing damage in the private property of the wronged person (whom henceforth we shall call the plaintiff) is always considered to be vicious and therefore it would seem that its owner must pay full damages – even in the case of a first offence. Our present mishnah asks how this must be understood.

2:
All the sages are in agreement that if the damage was caused in the public domain (where all have equal rights of passage) the owner of the ox pays only half-damages. However, with regards to damage caused in the private domain of the plaintiff – which was specifically singled out in the earlier mishnah quoted above – there is a disagreement between Rabbi Tarfon and the rest of the sages: Rabbi Tarfon holds that the owner of the malfeasant ox must pay full damages whereas the rest of the sages hold that half-damages are sufficient.

3:
Neither of these rulings is to be found specifically mentioned in the Torah; therefore the ruling in such a case must be deduced. What the sages are doing is trying to determine what the Torah would have said had it been specific about this case. This determination is made by means of logical deducation, the most ubiquitous of which is one called in Hebrew Kal va-Ḥomer. (For a full description of this method of deduction see Avot 052, explanation #9.) The logic basically is that if we have a specific ruling in the Torah for a minor infringement we can deduce that a similar or more serious ruling should be made in the case of a more serious infringement, even when that ruling is not made specific in the Torah.

4:
Rabbi Tarfon reasons thus: we learned in mishnah 2 of this chapter that in the case of damage caused by 'tooth' or 'foot' in the public domain the owner of the ox is exempt from payment of damages; however those same damages when caused in a private domain incur full damages. Now, reasons Rabbi Tarfon, that is the case with regards to 'tooth' and 'foot'; with regards to the 'horn' (butts, gores, bites, lies down or kicks) we know that in the public domain the owner must pay half-damages. Is it not eminently logical, therefore, that in the private domain he should be required to pay full damages?

5:
The sages reject this reasoning because, they hold that when we use this kind of deductive reasoning ("what would the Torah have said?") we cannot derive anything more severe than the severity actually stipulated by the Torah in the known half of the argument. This rule of deduction is based on the Torah itself. When Miriam (and Aaron) calumniate their brother Moses Miriam is inflicted with leprosy. At Aaron's request Moses intercedes on her behalf and begs God to heal her immediately. But God will have none if it!

God uses here a kind of Kal va-ḥomer argument: if she had been shamed by her father she would have had to seclude herself for seven days, would she not? In this case it was not her father who shamed her but God Himself – a much more serious situation. Yet God does not demand a greater 'price' in his own case than the known 'price' in the case of the father. Hence the rule that "it is sufficient that what is inferred should be the equivalent of what was derived" – and no more.

6:
Using Rabbi Tarfon's logic, say the sages, and also applying the above rule of deduction, we cannot exact a a greater punishment in the unknown part of the reasoning than was exacted in the known part of the reasoning: half-damages.

7:
Rabbi Tarfon now tries to perform the same kind of deduction just using different parameters, but the sages make the same objection. And, indeed, halakhah follows the opinion of the sages.

Tamar Dar writes:

In BK010, explanation #6, you write that in the public domain

If Dobbin's lunch would have cost David 2 dinars that is the extent of his indemnification, even if the loss of the carrots to Sara is 3 dinars."

My question is, what if Dobbin's lunch would have cost 3 dinars and the value of the carrots was only 2 dinars? How much must the donkey's owner pay?

I respond:

The ruling of the mishnah is clear: the owner must pay the amount that Dobbin's nefarious lunch would have cost him. However, if the value of the carrots is less than that, David may deduct one third of the cost. If that sum is still much greater than the value of the carrots then David need only idemnify to the sum of the actual loss.