Bava Kamma 035

1:
Obviously, our present mishnah does not rule that all oxen must be put to death! In the previous mishnah we learned that an ox which has killed a human being must be put to death. The only difference between a 'docile' ox that killed and a 'vicious' ox that killed is that in the latter case the owner must all indemnify the heirs of the deceased. But in either case the ox must be killed.

2:
In our present mishnah Tanna Kamma gives a list of seven killer oxen which must be killed even though there might be reasons to think that they need not be killed. Rabbi Yehudah, whose opinion is not accepted halakhah, disagrees with Tanna Kamma regarding three of the items in the list.

3:
In order to understand our mishnah we must refer once again to the original ruling of the Torah [Exodus 21:28-32]:

The sages, who always examined the text of the Torah in greatest detail, noted that in this comparatively brief passage the word 'ox' appears seven times. As is their wont they held that such a repetition cannot just be fortuitous. So, what emphasis or detail does the seven-fold occurrence of the word 'ox' mean to imply? Their answer should now, of course, be obvious: it serves to include the seven cases noted in our mishnah.

4:
Actually, even though his opinion is rejected, the thinking of Rabbi Yehudah can give us a clue as to why a killer ox that belongs to any of the people mentioned in the list should be put to death – or, perhaps, rather why some might think otherwise. We moderns would assume that any animal that is so dangerous that it has killed at least one person should be put to death before it can take another life. We also assume that this task must be in the hands of 'the authorities'. However, Torah legislation in so many matters of civil law does not take any civil authority into account. In the case of the killer ox the onus of killing the ox is placed on the owner of the ox. Now, what if that ox did not have an owner? Or what if that ox had an owner who was not legally competent?

5:
The three instances cited by Rabbi Yehudah serve to illustrate the matter: a wild ox belongs to no one; as the Hebrew term implies it has wandered into town from the wastelands where it roamed free. We have explained the term hekdesh now many times: an ox which has been dedicated to the Bet Mikdash belongs to God – and God cannot be sued in a Bet Din. The property of a convert who has no heirs becomes hefker – ownerless. When a Jew by birth dies he or she must have relations, however distant, that can inherit his or her property. However, if a Jew by choice dies and has no direct heirs (children) there can be no distant relatives to inherit.

6:
One could also understand most of the remaining items in our mishnah in similar fashion: if someone dies leaving children who have not yet reached the age of legal responsibility one could argue that the ox has no legal owner. Even if the court has appointed a guardian for such orphans it could still be argued that the guardian is just an administrator, not an owner.

7:
This leaves the first item in the list given by our mishnah: a woman. The inclusion of a woman here is truly perplexing, and the sages did their best to 'explain', though in most cases their best is just not good enough. The problem lies in the fact that, as I have explained since we first started our study of this tractate, that in all matters of damages (and most of the rest of Jewish civil law) halakhic jurisprudence makes no difference between men and women. "Scripture equalizes women and men regarding all civil rulings in the Torah [Yevamot 84b, Kiddushin 35a, BK 15a, Temurah 2b, Niddah 48b].

8:
So, why in our present mishnah, is a woman included in the list? She can most certainly be the legal owner of an ox; and if her ox kills a human being she may certainly be made responsible for seeing to its death. She just does not fit into this list here. But, since she is in the list, the sages feel required to explain; and, as I have already suggested, even the best of their explanations seem to be wanting (and a strong whiff of typical male chauvinism exudes from almost all of them).

9:
Here are a couple of the 'explanations' offered:

• The general equality of the sexes in civil law applies unless the Torah specifically suggests otherwise. In our case, the term 'owner' which appears so often regarding the ox suggests a male owner; therefore it was necessary to emphasize the inclusion of a female owner in the matter of the killer ox.
• Rashi says that the specific Hebrew term Ba'al ha-shor (the owner of the ox) implies a male. Most of the other commentators reject this.
• Other commentators refer to Exodus 21:35 which reads: "When a man's ox injures his neighbour's ox and it dies, they shall sell the live ox and divide its price; they shall also divide the dead animal." Hey presto! "A man's ox". Therefore, a woman must be specifically included.
• Maybe the woman in the list is a married woman, in which case one might think that the ownership of the ox is not clear: does it belong to the wife or to the husband?
• Women, poor dears, do not know how to look after oxen properly, so they must be specifically included in the list.

I have not exhausted the list of possible explanations, but these can surely suffice to give an impression of their quality.

10:
In the parallel passage in the Tosefta [Tosefta BK 4:6] the woman does not appear among those mentioned.