Bava Kamma Chapter Four Mishnayot Five and Six
Until now tractate Bava Kamma has mostly been concerned with an ox that kills or injures another ox. We learned that in such a case if the injuring ox was accounted harmless (tam) its owner will pay half damages and if it was an attested danger (muad) its owner will pay full damages. The Biblical verses which are concerned with this subject are Exodus 21:35-36.
The mishnah now moves to a related subject, that of an ox that kills a human being. The Biblical verses which are concerned with this subject are Exodus 21:28-32. According to these verses from Exodus if an ox kills a human being several things must happen. If it was a harmless ox, the ox is to be stoned and it is forbidden to derive any benefit from its meat. If the ox was a goring ox meaning it was an attested danger and its owners did not prevent it from killing again, on principal its owners deserve the death penalty, in addition to the death penalty to be meted out on the ox. However, the Torah allows for the owners to ransom their lives by paying a fine to the family of the person killed by the ox. The Torah emphasizes that the same is true if the ox killed a child. Finally, the Torah sets an established ransom-amount for an ox that kills a slave. Unlike a free person, for whom the Torah does not state the amount of the ransom, the owner of an ox that kills a slave will always pay 30 shekels. Finally the Torah emphasizes that even in this case the ox is still killed. We should note an ox killing a human being is the only instance in which the Torah allows for the paying of a ransom. If a person kills another person, the Torah demands the death penalty and does not allow the person to pay for his life. Money can never equal life and therefore no payment can compensate for its loss.
Mishnah five codifies some of these laws and mishnah six begins to deal with exceptional circumstances in which an ox kills a human being.
1) If an ox gored a person and he died,
a) if it was an attested danger [its owner] must pay the ransom,
b) if it was accounted harmless he is exempt from paying the ransom.
c) In both cases the ox is obligated for the death penalty.
2) So too [if it killed] a son or a daughter.
3) If it gored a male slave or a female slave its owner pays 30 sela,
a) Whether [the slave] was worth a maneh or not even worth a dinar.
1) If an ox was rubbing itself against a wall and it fell on a person;
2) or if it intended to kill an animal and it killed a man;
3) or if it intended to kill a gentile and it killed an Israelite;
4) or if it intended to kill an untimely birth and it killed a viable infant,
5) it is exempt [from death by stoning].
Mishnah five basically explains the verses from Exodus 21:28-32 which we discussed in the introduction. It may be somewhat puzzling to note how an ox that has killed can ever become an attested danger. After all, after it has killed once it is obligated for the death penalty and it should not have the opportunity to kill a second and third time, in order to become an attested danger. There should therefore never exist an ox that is an attested danger for killing. There are at least two possible answers to this question. Potentially the ox is an attested danger for goring, but has never killed a human being. It could become an attested danger by goring other animals and then later get the death penalty for killing a human. Second, it is possible that the ox killed other people without its being warned in the court. It cannot officially become an attested danger until witnesses testify against it in court. Therefore, although it may have killed several times, it is still a legally accounted harmless.
The rest of the mishnah is fairly straightforward. With regards to the monetary amounts in section three, it would help to translate them all into one unit of money, namely a dinar. A sela is four dinars, so 30 sela is 120 dinars. A maneh is worth 100 dinars. (In some versions of the mishnah it says 100 maneh, which would be 10,000 dinar.) The mishnah states that no matter how much the slave is worth the owner pays thirty sela. Whenever the Torah states a fixed amount as a fine, one must pay that amount whether or not the damage equaled the amount of the fine.
Mishnah six deals with several instances in which an ox that kills another Jewish human being but unintentionally. In section one the ox was only scratching its back and certainly had no intention to kill. In section two the ox did have intention to kill but its intention was to kill an animal. In section three the ox did have the intention to kill a human being, but its intention was directed at killing a gentile. According to the mishnah an ox that kills a gentile will not be judged in the same way as an ox that kills a Jew. (With regards to Jewish-gentile relations see the discussion on chapter four mishnah three.) In section four the ox did have intention to kill a Jewish human being, but that Jewish human being would not have been able to live. (According to the Rabbis understanding of medicine a child born after eight months could not survive). In all of these cases since the intention was to kill something for which the ox would not be liable for the death penalty the ox is exempt from the death penalty. In other words we judge the ox by its intention and not by its actions.
Questions for Further Thought:
· Why is the law for an ox that kills a slave different from the law of an ox that kills a free person?
· Why should the ox be judged based on its intention and not based on its action?
· Discuss the order of the clauses in mishnah six. Is there any sense to this order?