Bava Kamma Chapter Three Mishnah Nine

 

Introduction

Our mishnah is concerned with the scenario mentioned in Exodus 21:35 (translation from JPS Tanakh):  “When a man’s ox gores his neighbor’s ox and it dies, they shall sell the live ox and divide its price, they shall also divide the dead animal.”  This system of payment of damages (applicable only to a “tam” or harmless ox) works well when both animals are worth the same amount.  For instance if both the goring ox and the gored ox were worth 200 before the goring, and the carcass of the gored ox is 50, the two owners will sell both animals and split 200 and 50, leaving each with 125, or 75 less than the worth of their original ox.  75 is half of the 150 in damages caused to the gored ox, which matches our principle that when a tam injures, it’s owner pays half damages.  However this system does not work well if the two oxen are of differing values.  For instance, if the goring ox is worth 500 and the gored ox was worth 50 before the goring and its carcass is worth 30, the two owners will split 500 and 30, leaving each with 265. In this case the owner of the gored ox has benefited 215 since his original ox was worth 50.  Likewise the system in the Torah does not work if the gored ox was worth more than the goring ox.  If the goring ox was worth 50 and the gored ox 200 before the goring, and its carcass is worth 50, the two owners will split 50 and 50 leaving each with 50.  The owner of the gored ox did not receive half damages, which would have been 100.  The sages in our mishnah are dealing with the case in which we are able to fulfill the literal meaning of the verse in Exodus and still maintain our principle of half damages. 

 

Mishnah

1)                     If an ox worth 100 gored an ox worth 200, and the carcass is not worth anything, [the owner of the gored ox] takes the [live] ox. 

2)                     If an ox worth 200 gored an ox worth 200 and the carcass is not worth anything,

a)                                           Rabbi Meir said, “If thus it was written, ‘they shall sell the live ox and divide its price, they shall also divide the dead animal’.

3)                     Rabbi Judah said to him:  “Such indeed is the halachah (law), but you have fulfilled the verse ‘they shall sell the live ox and divide its price’, and you have not fulfilled the verse ‘they shall also divide the dead animal’. 

a)                                           What case is this?  If an ox worth 200 gored an ox worth 200 and the corpse is worth 50, this one takes half of the live ox and half of the dead ox, and this one takes half of the live ox and half of the dead ox.

 

Explanation

Section 1 describes a case where an ox worth 100 gored an ox worth 200.  The owner of the goring ox owes 100, which are half damages.  Since the carcass is not worth anything, the owner of the dead ox can just take the live ox as payment.  This case is significantly different than the case described in Exodus. There the two owners sold both the live ox and the carcass and split the proceeds evenly.  In this case there is no need for any selling or splitting of proceeds.

Section 2, which contains Rabbi Meir’s opinion brings up a case closer to the one described in Exodus.  Here the goring ox and the gored ox are both worth 200, but the carcass is not worth anything.  The owner of the goring ox owes 100 and therefore the two owners sell the goring ox and split the proceeds.

In section 3 Rabbi Judah points out that Rabbi Meir’s scenario only fulfills half of the description of the case in Exodus, that is selling the live animal.  Rabbi Meir’s scenario does not include the need to sell the carcass, which is mentioned in Exodus. Therefore Rabbi Judah explains that Exodus describes the scenario as we explained in the introduction, where both oxen are worth 200 before the goring and the carcass is worth 50.  They sell both the live and dead oxen and split the proceeds, leaving both parties with 125, 75 less than the amount with which they started.  Since full damages were 150, 75 is equal to half damages.

 

Questions for Further Thought:

·                      As I pointed out in the introduction, the Torah is only dealing with a circumstance in which both oxen were of equal value.  Why do you think the Torah only describes this circumstance? 

·                      Following up the first question, the Torah teaches the principle of half damages.  Why do you think that it doesn’t just say that the injuring party pays half damages and instead it describes the process of selling both the live and dead animals?  To whose advantage is this system? 

 

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