Bava Kamma Chapter Four Mishnah Four

 

Introduction

Our mishnah deals with oxen owned by deaf-mutes, insane people or minors that damage oxen owned by adults of sound-mind or are damaged by them.  We should note that in the ancient world deaf-mutes were considered to be unintelligent, probably because they had no way of communicating with the outside world.  We should remember that in those times the written word was much more scarce and almost all communication and learning was done orally.  It is therefore, little surprise, that deaf-mutes were considered to lack intelligence.  The three categories of people mentioned are therefore, according to the mishnah, all people who are not capable of fully knowing the consequences of their actions, and therefore cannot be held responsible for them.  Thankfully, in the modern world we have developed sign language and other forms of communication (including e-mail and the internet) that have allowed us to learn that people who cannot speak verbally or hear are no less intelligent than those who can. 

 

Mishnah

1)                     [If] an ox of a person of sound senses gored the ox of a deaf-mute, an insane person, or a minor,

a)                                           [its owner] is obligated.

2)                     [If] an ox of a deaf-mute, an insane person or a minor, gored the ox of a person of sound senses,

a)                                           [its owner] is exempt.

3)                     [If] an ox a deaf-mute, an insane person or a minor gored,

a)                                           the court appoints a guardian over them,

b)                                          and [their oxen] are testified against in the presence of the guardian.

c)                                           [If] the deaf-mute became of sound senses, or the insane person recovered his reason, or the minor came of age,

d)                                          [the ox] is thereupon deemed harmless once more, according to Rabbi Meir.

e)                                           Rabbi Yose says, “It remains as it was before.”

4)                     An ox from the stadium is not liable to be put to death,

a)                                           as it says, “When it will gore” (Exodus 21:28), and not “When others cause it to gore.”

 

Explanation

·                      Section one deals the ox of a person of sound senses that injures the ox of a deaf-mute, insane person or minor.  In this case the owner is obligated the same way that s/he would be obligated if the ox injured any person’s ox.

·                      Section two deals with the ox of a deaf-mute, insane person or minor that gores another person’s ox.  In this case the owner of the injuring ox is not liable.  The mishnah considers these people not to be capable of protecting their oxen from injuring others, and therefore they are not liable. 

·                      Section three continues to deal with the problem of oxen that belong to deaf-mutes, insane people or minors from injuring.  Although these people are not responsible for their actions, this does not mean that the halakhah does not have the duty to protect the interests of others who are damaged by them.  Therefore, the mishnah institutes a process by which the court appoints a guardian over the oxen of the aforementioned people.  If the ox should henceforth damage three times, it will become an attested danger (muad) and the guardian will pay full damages from the estate of the deaf-mute, insane person or minor. 

·                      In section three clauses c through e, Rabbi Meir and Rabbi Yose disagree concerning the case where the ox of a deaf-mute, an insane person or a minor was declared by the court to be an attested danger (muad) and then the status of the owner changed to that of an adult person of sound senses.  According to Rabbi Meir, the ox’s slate is cleaned and it returns to being a harmless ox (tam).  If it should injure again its owner will only be obligated half damages.  According to Rabbi Yose, the ox remains an attested danger and if it should injure again its owner will be obligated full damages.

·                      Section four deals with a stadium ox, what we might call a fighting bull.  As is well known, the Romans entertained themselves by throwing slaves and other human beings into pits to fight animals to the death.  (Indeed some still find this entertaining).  In Exodus 21:28 we learn that oxen are obligated for death if they kill a person.  Our mishnah is a midrash on the words, “When it will gore” that begins this verse.  According to the midrash, or legal exposition, the verse deals with an ox that gores of its own will and not an ox that is put into the position where human beings are urging it to kill.  In this case, the ox is innocent and I might add one should wonder whether those in the stadium aren’t the ones with innocent blood on their hands.

 

Questions for Further Thought:

·                      Why does the mishnah need to teach section one? 

·                      Try to explain the disagreement between Rabbi Yose and Rabbi Meir.  Why do they each hold their respective positions?  What might this tell us about the nature of the responsibility that falls on the owner of an animal that is an attested danger?

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