Bava Kamma 037

8:
We come now to the second part of Mishnah 9. This part of our mishnah deals with what is appropriate restraint of an animal that could be potentially dangerous.

9:
David has an ox that he affectionately calls Goliath. Unfortunately, Goliath has gored Sarah three times (possibly because she wears a red kercheif). The last time Goliath gored Sarah rather badly and Sarah, of course, has taken David to court. The court has warned David that he must keep his ox under proper restraint or suffer the consequences. Goliath is now officially deemed 'vicious' (mu'ad). Instead of letting Goliath roam free in the yard David places around the animal's neck the rope with which he usually attaches the ox to the upper millstone when it is grinding flour. This rope he fastens securely to a sturdy hook in the wall, and as a further precaution he locks the gate to his yard. Such precautions must surely be considered sufficient to answer the court's warning that he must keep his animal under restraint.

10:
Goliath espies some luscious grass in the next field and has a sudden urge. Somehow or other he manages to slip the rope away from the hook and he crashes down the locked gate. Despite the fact that David has taken suitable precautions the court will require him to pay Sarah full damages. But even if Goliath had never been in trouble before and enjoyed the status of 'docile' (tam) the court would require David to indemnify Sarah.

11:
What we have described so far is the opinion of Rabbi Me'ir (which is not accepted halakhah). The Gemara [BK 45b] asks:

Later on [BK 55b] the Gemara defines 'minimal precautions' as a gate or fence that will remain standing against a normal breeze. The explanation of the opinion of Rabbi Me'ir now continues:

12:
Rabbi Yehudah disagrees with the reasoning of Rabbi Me'ir. He holds – contrary to what one might have expected – that only a 'docile' animal obliges its owner to indemnify the plaintiff and an animal that has already been declared to be 'vicious' does not incur such indemnification. His reasoning is based on the wording of the Torah already referred to in the reasoning of Rabbi Me'ir:

Rabbi Yehudah notes that the Torah explicitly says that a 'vicious' animal incurs damages only if "its owner has failed to guard it", and our mishnah states quite clearly that we are dealing with a case where

So, he maintains, the animal described in our mishnah was properly restrained and therefore no indemnification should be required: the law of the Torah was observed and kept.

13:
We now come to the opinion of Rabbi Eli'ezer. He essentially agrees with Rabbi Yehudah that if the 'vicious' animal were reasonably restrained the owner should not have to pay up. However, he disagrees regarding what one might consider to be 'reasonable restraint'. What kind of 'guarding' might the Torah consider 'reasonable' in such cases? An owner has been warned that his ox is dangerous (mu'ad) because it has caused mayhem on more than one occasion. What, asks Rabbi Eli'ezer, might now be considered appropriate guarding to see that the animal can never harm anyone again? His answer is given in our mishnah:

In other words, once an animal is so dangerous that it has already caused loss of life it should be slaughtered to prevent any further loss of life. Therefore, if the owner did not slaughter his animal, it matters not how carefully the animal was restrained, if it succeeds yet again in escaping and goring the owner must pay up.

14:
Rambam, in his commentary on our mishnah, notes that halakhah follows the opinion of Rabbi Eli'ezer: the animal should be killed; failing that the owner must indemnify the plaintiff.

15:
This brings to an end our study of Chapter 4. God willing, in our next shiur we shall commence our study of chapter 5 of this tractate.