Bava Kamma Chapter Three Mishnah Eight

 

Introduction

This mishnah returns to deal with a subject that we dealt with in the last mishnah of chapter one and in the fourth and fifth mishnayoth of chapter 2 and that is the goring ox.  Remember, there are two types of goring oxen, one that is a previously attested danger (muad), who has been testified against.  The second type is innocent (tam) meaning he is not a previously attested danger.  When a muad damages the owner will pay full damages from the best of his land.  When a tam damages the owner will pay half damages from the value of the tam itself.  This means that the upper limit of liability will be the value of the damaging animal.

We will continue to deal with the goring ox for the next two and a half chapters.  I will not be explaining the concepts of tam and muad every time we encounter them.  I will try to reference places where I did explain them.  If you are wondering why the mishnah is so fascinated by the goring ox, it is due to the fact that the Torah mentions the ox quite frequently (Exodus 21:28-32, 35-36).  It is indeed the paradigm for the damaging animal.

 

Mishnah

1)                     If two oxen which were accounted harmless hurt one another,

a)                                           the owner pays half-damages for that one which suffered the greater hurt.

2)                     If both were attested dangers

a)                                           full damages are payable for that one which suffered the greater hurt.

3)                     If one was accounted harmless and the other was an attested danger,

a)                                           that which was an attested danger as against that which was accounted harmless must pay full damages for the greater hurt that the other has suffered,

b)                                          while that which was accounted harmless, as against that which was an attested danger, pays only half damages for the greater hurt that the other has suffered. 

4)                     So, too, if two men hurt one another,

a)                                           full damages are payable for that one which suffered the greater hurt.

5)                     If a man and an ox which was accounted harmless hurt one another,

a)                                           the man as against the ox accounted harmless must pay full damages for the greater hurt that the other has suffered,

b)                                          while the ox accounted harmless, as against the man, pays only half damages for the greater hurt that the other suffered.

c)                                           Rabbi Akiva says:  “Even if an ox accounted harmless hurt a man, full damages must be paid for that one which suffered the greater hurt.

 

Explanation

The rendering of this mishnah into sensible English is very difficult since the mishnah speaks in shorthand.  However, the explanation should make more sense to you.

The first section deals with two harmless oxen that gore each other.  In general the owner of each is obligated to pay half damages to the other.  Here we figure out what was the greater damage and the owner of the less injured ox will pay half of that amount.  A table will help.

 

Value of ox before injury

Value after injury

Damages

Amount owed

100 (tam)

30

70

35

50  (tam)

30

20

10

 

In this case the owner of the ox worth fifty will pay twenty-five to the owner of the ox worth 100. 

 

In the second case both of the animals were muad and will therefore pay full damages.   Our table now looks like this: 

Value of ox before injury

Value after injury

Damages

Amount owed

100 (muad)

30

70

70

50 (muad)

30

20

20

 

In this case the owner of the ox worth fifty will pay fifty to the owner of the ox worth 100.

 

In the third case one ox was muad and one was tam.  The muad will owe half damages and the tam full damages.  According to our example in this case the animal worth 100 was a muad and therefore will owe full damages for the animal worth 50.  The animal worth 50 is a tam and will therefore pay half damages for the animal worth 100.   Our table now looks like this:

 

Value of ox before injury

Value after injury

Damages

Amount owed

100 (muad)

30

70

35

50 (tam)

30

20

30

 

In this case the owner of the ox worth fifty will pay 5 to the owner of the ox worth 100. 

 

The fourth case of the mishnah deals with human beings who injure one another.  Since a human being is always a muad (see chapter one mishnah four), this is similar to case number two.

 

The fifth and final case deals with a human being (who is always muad) and a harmless ox (tam) who injure one another.  This case is similar to case number three.  We will nevertheless bring a new table.

 

Value before injury

Value after injury

Damages

Amount owed

1000– human (muad)

500

500

250

50–ox (tam)

20

30

30

 

In this case the owner of the ox will pay the human 220.  Rabbi Akiva disagrees.  According to him an ox that injures a human being always pays full damages as if it was a muad.  Therefore in the previous scenario the owner of the ox will pay 470 to the human.

 

Questions for Further Thought:

·                      What is the basis for the disagreement between Rabbi Akiva and the other opinion in the mishnah?

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