Bava Kamma 034

1:
Our mishnah is very simple even though it offers some rather strange – and unlikely – illustrations. And we must remember that they are illustrations: examples of possible events that are meant to guide a court in its decisions.

2:
It is a well-known assumption of rabbinic jurisprudence that for a person to lose his life as punishment for the infringement of a mitzvah, full intent and awareness of the consequences must be proven in court. (We discussed this most thoroughly when we studied Tractate Sanhedrin more than twelve years ago.) All the multifarious rules and regulations that the sages weaved around cases involving capital punishment were so intricate that it was readily admitted that a successful prosecution was unlikely in the extreme. Indeed, there is a mishnah [Makkot 1:10] which makes this very clear:

3:
The novelty of our present mishnah is that it extends this same reluctance to execute towards animals. All that our mishnah is saying is that when an ox kills someone it should only be put to death if full intention can be assumed. Our mishnah brings four 'examples'.

1. When the ox scratched itself against a wall did it intend to make the wall collapse and kill a person standing next to it? If not, the death was accidental and thus unpremeditated.
2. If the ox charged an animal but ended up killing a person as well or instead this death too was accidental: the ox intended to kill, but did not kill the intended victim.
3. If the ox charged a non-Jew but missed and killed a Jew instead this death too was accidental or unintended. (As we have seen, an ox was not liable in a Jewish court for the death of a non-Jew.)
4. A child still in utero was not considered viable until the ninth month of pregnancy. So if the ox charged a woman who was eight months pregnant and the incident caused her to abort the ox was deemed to have killed a child that could not have lived.

4:
In all such cases – and in his commentary Rambam emphasizes that they are examples for guidance – the ox is not killed. The Gemara [BK 44a] does require the owner, however, to indemnify the victim's heirs.

Jim Feldman is still not satisfied with my explanations concerning "love of the stranger". He writes:

If I recollect properly, the biblical injunction says nothing about "loving the stranger." Quoting from Exodus (23:9), it states: "You shall not oppress the stranger, for you know the soul of the stranger, having been strangers in the land of Egypt." That has nothing whatsoever to do with "strangers" being Jews. In fact, quite the opposite. For latter day rabbis to interpret "stranger" as a Jew from another town is bizarre.

I respond:

It seems to me that Jim is raising three points. His first point is that nowhere does the Torah command us to love the stranger. This is completely wrong! The Torah [Deuteronomy 10:19] states quite specifically "You must love the stranger for you were strangers in the land of Egypt." And again [Leviticus 19:34] "Like one of your home-born shall be the stranger who sojourns among you, and you must love him like yourself for you were strangers in the land of Egypt."

Jim's next point is that 'strangers' does not refer to 'Jews'. The point that I made in my original comment was that the sages understood the Hebrew term ger ['stranger'] to refer to what we would now call a convert to Judaism. However, this too is unnecessary, because all modern bible critics agree that the term ger when used by the biblical authors refers to someone who was not born into an Israelite family and who came from another country and another people to settle among the Israelites. The ger had no land patrimony and was therefore destitute and dependent on people's goodwill. When negotiating with the Hittites to acquire the Cave of Machpelah as a burial site for Sarah Abraham says [Genesis 23:4]: "I am a resident alien [ger] among you." But, of course, the prime example of the status and plight of the ger is Ruth the Moabitess, the ancestress of King David.

Jim's third point is that "latter day" rabbis have interpreted ger as referring to 'A Jew from another town'. I really do not understand this claim. If 'latter day' rabbis means 'contemporary rabbis' this is a misunderstanding: it was the sages of the Talmudic period who had this understanding, not modern rabbis, who are just following in the footsteps of the sages. And, as we have just seen, since the biblical ger means 'resident alien' the sages were not far off the mark. Nowhere, to the best of my knowledge, is it suggested that the Hebrew term ger refers to "a Jew from another town". This would be completely wrong: A Jew is a Jew is a Jew – regardless of her provenance.

Discussion on this topic is now closed.