Bava Kamma Chapter Four Mishnah Nine

 

Introduction

Although we will learn only one mishnah today it really contains two distinct subjects.  The first section deals with an ox owner who gives his ox to a guardian.  Jewish law recognizes four different types of guardians (we will discuss their laws in detail when we learn tractate Bava Metzia):  a borrower, an unpaid guardian, a paid guardian and a hirer.  All four of these people receive an object from another person and they have varying degrees of responsibility to guard the object and varying rights to use the object.  Our mishnah will teach us that when an owner turns over his ox to any of the four guardians, they now become responsible for any damage the ox will cause while under their protection.

The second part of the mishnah deals with the duty an owner himself has to protect his ox from causing damage.  Exodus 21:29 states:  “If, however, that ox has been in the habit of goring, and its owner, though warned, has failed to guard it…” (JPS translation).  The sages in our mishnah will discuss the duty to guard a goring ox and the financial consequences of proper and improper guarding.

 

Mishnah

1)                     If one handed it to an unpaid guardian, or to a borrower, or to a paid guardian, or to a hirer,

a)                                           they take the place of the owners;

b)                                          if the beast was an attested danger he pays full damages,

c)                                           and if it was accounted harmless he pays half damages.

2)                     If its owner had tied it with a halter,

i)                                                       or locked it up properly,

ii)                                                      but it came out and caused damage,

iii)                                                     the owner is liable, whether it was an attested danger or accounted harmless,

iv)                                                     these are the words of Rabbi Meir.

b)                                          Rabbi Judah says:  “If it was accounted harmless he is liable, but if it was an attested danger he is exempt, as it says, “and its owner did not guard it”, but this one has been guarded.

c)                                           Rabbi Eliezer says:  “Its only guarding is the knife.”

 

Explanation

Section one states quite clearly that any time an owner turns his ox over to another person who has agreed to watch the ox, that person will be responsible for any damages that the ox causes under his guardianship.  The real point of this mishnah is that even an unpaid guardian, who neither gets use of the ox nor financial compensation for his guarding, still has liability for damages the ox will cause.  In other words, clearly a borrower should be liable in such a case, since he gets the use of the ox and doesn’t even have to pay for it.  A hirer also gets the use of the ox, even though he pays for it, so he too should be liable.  A paid guardian, while not getting use of the ox, is receiving financial compensation for his guardianship and therefore it is reasonable for him to be liable for damages.  However, an unpaid guardian does not receive anything in return and is in essence doing a favor for the owners.  The mishnah therefore emphasizes that even so he is liable if the ox should cause damage.

 

Section two deals with the obligation an owner has to guard his ox.  According to Rabbi Meir, tying up an ox or locking it in a pen is evidently not enough protection to exempt one from damages the ox will cause.  Therefore, even if the owner performed these acts, he will still be obligated for damages the ox will cause. 

 

According to Rabbi Judah, with protection such as tying it up or locking it in, the owner exempts himself from liability for damages caused by an ox that is an attested danger.  There is something slightly perplexing with regards to Rabbi Judah’s statement.  In the case that he describes an owner may be more obligated for an ox that is a tam, accounted harmless, than for an ox that is a muad, an attested danger.  There are two possible answers to this point.  First of all, the Torah mentions “guarding” only with regards to the muad, attested danger.  Rabbi Judah may be reading the Torah literally.  He therefore states that only with regards to the muad is guarding relevant.  Guarding a tam will not exempt one from paying for its damages.  Secondly, according to the Talmud’s reading of Rabbi Judah’s opinion, if he ties up the ox which is a muad or he locks it in although he will not be obligated for full damages, he will be obligated for half damages.  In other words, according to the Talmud, Rabbi Judah does not hold the opinion that one could be more liable for a muad than for a tam.  ]

 

Rabbi Eliezer believes that the only way to guarantee that an ox which is an attested danger will not cause damage again is to slaughter the ox.  In other words, even though he tied it up or locked it in, he is still obligated for full damages for the muad and half damages for the tam.

 

Questions for Further Thought:

·                      Why should the unpaid guardian be liable if the ox causes damages?

·                      According to Rabbi Meir, locking the ox in or tying it up is not sufficient to exempt one from damages the ox might cause.  What then must the owner do, according to Rabbi Meir, in order to properly guard the ox?

·                      What might be some modern equivalents to these laws?

 

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