Bava Kamma 33b

כֵּיוָן דִּמְשַׁעְבַּד לֵיהּ לְנִיזָּק – לָאו כֹּל כְּמִינֵּיהּ? אֲמַר לֵיהּ: אֵינוֹ מָכוּר.

does he say that since the ox is liened to the debt to the injured party, who will collect it should the ox’s owner not have sufficient funds, it is not in his power to sell it? Rav Naḥman said to him: It is not sold.

וְהָתַנְיָא: מְכָרוֹ – מָכוּר! חוֹזֵר וְגוֹבֵהוּ. וְכִי מֵאַחַר שֶׁחוֹזֵר וְגוֹבֵהוּ, לָמָּה מָכוּר? לְרִידְיָא.

Rava asked him: But isn’t it taught in a baraita that if he sold it, it is sold? Rav Naḥman replied: Nevertheless, the injured party then collects it from the purchaser. The Gemara asks: Since the injured party then collects it from the purchaser, with regard to what matter is it sold? His right to collect it negates the effectiveness of the sale. The Gemara answers: It is sold for the purpose of plowing [ ridya ]. The purchaser may use the ox for plowing until the injured party collects it from him, and the purchaser is not required to reimburse the injured party for the use of his ox.

שְׁמַע מִינַּהּ: לֹוֶה וּמוֹכֵר מִטַּלְטְלִין – בֵּית דִּין גּוֹבִין לוֹ מֵהֶם? שָׁאנֵי הָתָם, דִּכְמַאן דַּעֲשָׂאוֹ אַפּוֹתֵיקֵי דָּמֵי.

The Gemara asks: Should one conclude from this ruling that with regard to one who borrows money and then sells his movable property, the court can collect the debt from this property on behalf of the creditor, as according to Rabbi Yishmael the belligerent ox is only a lien for the debt owed to the injured party? The Gemara answers: There, in the case of the belligerent ox, it is different, as the owner of the ox is considered like one who rendered it designated payment of the debt, since the Torah specifies that the injured party collects damages from the ox. In general, however, movable property that is sold by a debtor cannot be collected by the creditor.

וְהָאָמַר רָבָא: עָשָׂה עַבְדּוֹ אַפּוֹתֵיקֵי, וּמְכָרוֹ – בַּעַל חוֹב גּוֹבֶה הֵימֶנּוּ. שׁוֹרוֹ אַפּוֹתֵיקֵי וּמְכָרוֹ – אֵין בַּעַל חוֹב גּוֹבֶה הֵימֶנּוּ!

The Gemara asks: But doesn’t Rava say that if one rendered his slave as designated repayment for a debt and subsequently sold him, the creditor collects payment from the purchaser, whereas if one rendered his ox as designated repayment and then sold it, the creditor cannot collect it from the purchaser? This contradicts the previous statement that the belligerent ox is considered designated repayment, and therefore even if it is sold the injured party can collect it from the purchaser.

עֶבֶד מַאי טַעְמָא – מִשּׁוּם דְּאִית לֵיהּ קָלָא; הַאי נָמֵי, כֵּיוָן דִּנְגַח – קָלָא אִית לֵיהּ, דְּ״תוֹרָא נַגְחָנָא״ קָרוּ לֵיהּ.

The Gemara answers: The distinction made in Rava’s statement answers this question. What is the reason that a slave who was rendered as designated repayment can be collected from the purchaser? It is because rendering a slave as designated repayment is not common and generates publicity. The purchaser was therefore aware of this when he bought the slave. Similarly, with regard to this ox as well, since it gored an animal, it generates publicity, as it is publicly called a goring ox, and so the purchaser was aware of the lien attached to it. Therefore, the injured party can collect it from the purchaser.

תָּנֵי רַב תַּחְלִיפָא בַּר מַעְרְבָא קַמֵּיהּ דְּרַבִּי אֲבָהוּ: מְכָרוֹ – אֵין מָכוּר, הִקְדִּישׁוֹ – מוּקְדָּשׁ.

Rav Taḥalifa from the West, Eretz Yisrael, taught the following baraita with regard to the belligerent ox before Rabbi Abbahu: If he sold it, it is not sold, but if he consecrated it, it is consecrated.

מְכָרוֹ מַאן? אִילֵימָא מַזִּיק, ״מְכָרוֹ אֵין מָכוּר״ מַנִּי – רַבִּי עֲקִיבָא הִיא, דְּאָמַר: הוּחְלַט הַשּׁוֹר; וְ״הִקְדִּישׁוֹ מוּקְדָּשׁ״ – אֲתָאן לְרַבִּי יִשְׁמָעֵאל, דְּאָמַר: יוּשַׁם הַשּׁוֹר בְּבֵית דִּין!

The Gemara asks: Who sold it? Is it the injured party or the liable party? If we say it is the one liable for the damage, whose opinion is it that if he sold it, it is not sold? It is the opinion of Rabbi Akiva, who says that the ox was already assigned to the injured party. But in the following statement of the baraita , that if he consecrated it, it is consecrated, we arrive at the opinion of Rabbi Yishmael, who says that the ox shall be appraised in court.

אֶלָּא נִיזָּק? ״מְכָרוֹ אֵינוֹ מָכוּר״ מַנִּי – רַבִּי יִשְׁמָעֵאל, ״הִקְדִּישׁוֹ מוּקְדָּשׁ״ אֲתָאן לְרַבִּי עֲקִיבָא!

If, rather, it is referring to the injured party selling it, whose opinion is it that if he sold it, it is not sold? It is the opinion of Rabbi Yishmael, who holds that the injured party has no share of ownership in the ox until it is transferred to him by the court. But in the statement that if he consecrated it, it is consecrated, we arrive at the opinion of Rabbi Akiva. The baraita does not seem to accord with either opinion.

לְעוֹלָם מַזִּיק, וְדִבְרֵי הַכֹּל; ״מְכָרוֹ אֵינוֹ מָכוּר״ – אֲפִילּוּ לְרַבִּי יִשְׁמָעֵאל, דְּהָא מְשַׁעְבְּדָא לֵיהּ לְנִיזָּק.

The Gemara answers: Actually, it is referring to the one liable for the damage, and everyone agrees with its ruling. The ruling that if he sold it, it is not sold is the halakha even according to the opinion of Rabbi Yishmael, as the ox is liened to the injured party, precluding the owner from selling it.

״הִקְדִּישׁוֹ מוּקְדָּשׁ״ – אֲפִילּוּ לְרַבִּי עֲקִיבָא, מִשּׁוּם דְּרַבִּי אֲבָהוּ; דְּאָמַר רַבִּי אֲבָהוּ: גְּזֵירָה שֶׁמָּא יֹאמְרוּ הֶקְדֵּשׁ יוֹצֵא בְּלֹא פִּדְיוֹן.

The statement that if he consecrated it, it is consecrated, is the halakha even according to Rabbi Akiva, since it is not actually consecrated but is considered so only due to the statement of Rabbi Abbahu. As Rabbi Abbahu says that if one consecrates liened property, although the consecration does not take effect, nevertheless he is required to redeem it, due to a rabbinic decree lest people say that consecrated property can be removed from the ownership of the Temple treasury without redemption. Therefore, the ineffectiveness of the ox’s consecration notwithstanding, he is still required to redeem it, by means of minimal payment, so as not to cause the denigration of Temple property.

תָּנוּ רַבָּנַן: שׁוֹר תָּם שֶׁהִזִּיק; עַד שֶׁלֹּא עָמַד בַּדִּין – מְכָרוֹ מָכוּר, הִקְדִּישׁוֹ מוּקְדָּשׁ, שְׁחָטוֹ וּנְתָנוֹ בְּמַתָּנָה – מַה שֶּׁעָשָׂה עָשׂוּי. מִשֶּׁעָמַד בַּדִּין – מְכָרוֹ אֵינוֹ מָכוּר, הִקְדִּישׁוֹ אֵינוֹ מוּקְדָּשׁ, שְׁחָטוֹ וּנְתָנוֹ בְּמַתָּנָה – לֹא עָשָׂה וְלֹא כְלוּם.

§ The Sages taught in a baraita : With regard to an innocuous ox that caused damage, if, before its owner stood trial, he sold it, it is sold. If he consecrated it, it is consecrated. If he slaughtered it or gave it as a gift, what he did is done, i.e., takes effect. By contrast, once he stood trial and is now obligated to pay the injured party, if he sold it, it is not sold; if he consecrated it, it is not consecrated; if he slaughtered it or gave it is a gift, he has done nothing.

קָדְמוּ בַּעֲלֵי חוֹבוֹת (וְהִגְבִּיהוֹ) [וְגָבוּהוּ]; בֵּין חָב עַד שֶׁלֹּא הִזִּיק, בֵּין הִזִּיק עַד שֶׁלֹּא חָב – לֹא עָשׂוּ וְלֹא כְּלוּם, לְפִי שֶׁאֵין מִשְׁתַּלֵּם אֶלָּא מִגּוּפוֹ.

If creditors of the ox’s owner collected the ox first, whether he owed the creditors before his ox caused the damage or whether it caused the damage before he owed them, they have done nothing. Their collection is void, because compensation to the injured party is paid only from the body of the ox, as it was innocuous, and it is therefore designated exclusively for this compensation.

מוּעָד שֶׁהִזִּיק – בֵּין שֶׁעָמַד בַּדִּין, בֵּין שֶׁלֹּא עָמַד בַּדִּין; מְכָרוֹ מָכוּר, הִקְדִּישׁוֹ מוּקְדָּשׁ, שְׁחָטוֹ וּנְתָנוֹ בְּמַתָּנָה – מָה שֶּׁעָשָׂה עָשׂוּי. קָדְמוּ בַּעֲלֵי חוֹבוֹת (וְהִגְבִּיהוּ) [וְגָבוּהוּ]; בֵּין חָב עַד שֶׁלֹּא הִזִּיק, בֵּין הִזִּיק עַד שֶׁלֹּא חָב – מַה שֶּׁעָשָׂה עָשׂוּי, לְפִי שֶׁאֵין מִשְׁתַּלֵּם אֶלָּא מִן הָעֲלִיָּיה.

The baraita continues: With regard to a forewarned ox that caused damage, whether its owner stood trial or whether he did not stand trial, if he sold it, it is sold; if he consecrated it, it is consecrated; if he slaughtered it or gave it as a gift, what he did is done. Likewise, if creditors collected the ox first, whether he owed them before it caused the damage, or whether it caused the damage before he owed them, what they did is done. This is because the restitution is paid only from his superior-quality property, not from the body of the ox. Therefore, what he or his creditors do with the ox takes effect.

אָמַר מָר: ״מְכָרוֹ מָכוּר״ – לְרִדְיָא.

The Gemara explains the baraita : The Master said above, with regard to an innocuous ox, that if he sold it, it is sold. As explained above, the sale is valid only with regard to the purchaser using the ox for plowing in the interim, until the injured party collects it.

״הִקְדִּישׁוֹ מוּקְדָּשׁ״ – מִשּׁוּם דְּרַבִּי אֲבָהוּ.

The statement that if he consecrated it, it is consecrated does not mean that it is actually consecrated, but rather that it must be redeemed through payment of a minimal sum, due to Rabbi Abbahu’s statement mentioned above.

״שְׁחָטוֹ וּנְתָנוֹ בְּמַתָּנָה, מַה שֶּׁעָשָׂה עָשׂוּי״; בִּשְׁלָמָא נְתָנוֹ בְּמַתָּנָה, מַה שֶּׁעָשָׂה עָשׂוּי – לְרִדְיָא; אֶלָּא שְׁחָטוֹ – לֵיתֵי וְלִשְׁתַּלַּם מִבִּשְׂרֵיהּ!

With regard to the statement that if he slaughtered it or gave it as a present, what he did is done, the Gemara asks: Granted, if he gave it as a present, what he did is done with regard to the recipient’s permission to use it for plowing. But if he slaughtered it, how does that affect the injured party’s rights? Let him come and receive payment from the slaughtered ox’s meat.

דְּתַנְיָא: ״חַי״ – אֵין לִי אֶלָּא חַי, שְׁחָטוֹ מִנַּיִן? תַּלְמוּד לוֹמַר: ״וּמָכְרוּ אֶת הַשּׁוֹר״ מִכׇּל מָקוֹם.

This is as it is taught in a baraita : It is stated in the Torah: “Then they shall sell the live ox” (Exodus 21:35). I have derived only that the injured party receives a share of ownership if the belligerent ox is alive. From where do I derive that this applies even if the ox’s owner slaughtered it? The verse states: “Then they shall sell the live ox,” indicating that in any case, whatever the circumstances, the injured party is paid from proceeds of the sale of the belligerent ox.

אָמַר רַב שֵׁיזְבִי: לֹא נִצְרְכָא אֶלָּא לִפְחַת שְׁחִיטָה.

Rav Sheizevi said: This statement is necessary only with regard to the diminished value of the ox due to its slaughter. Although the value of the ox may no longer cover the damage, its owner is not liable to compensate the injured party beyond the ox’s current value.

אָמַר רַב הוּנָא בְּרֵיהּ דְּרַב יְהוֹשֻׁעַ: זֹאת אוֹמֶרֶת, הַמַּזִּיק שִׁעְבּוּדוֹ שֶׁל חֲבֵירוֹ – פָּטוּר.

Rav Huna, son of Rav Yehoshua, said: That is to say that one who causes damage to another’s liened property is exempt from paying compensation, since the property does not actually belong to the one who holds the lien.

פְּשִׁיטָא! מַהוּ דְּתֵימָא, הָתָם הוּא דְּאָמַר לֵיהּ: לָא חַסַּרְתָּיךְ וְלָא מִידֵּי – דְּאָמַר לֵיהּ: זִיקָא בְּעָלְמָא הוּא דִּשְׁקַלִי מִינָּךְ; אֲבָל בְּעָלְמָא לִיחַיַּיב; קָא מַשְׁמַע לַן.

The Gemara asks: Isn’t this inference from the baraita obvious? The Gemara answers: Rav Huna, son of Rav Yehoshua, states this halakha lest you say that it is specifically there, in the case where one slaughters a liened ox, that he is exempt, as he can say to him: I have not detracted anything from what is yours, as he can say to him: I took only spirit from what is yours. He detracted only the life of the ox, not its physical body, and one who causes damage to another’s liened property might be exempt from liability for this intangible damage. But generally one who causes damage to another’s lien should be liable. Therefore, Rav Huna, son of Rav Yehoshua, teaches us that one is exempt from liability for all types of damage he causes to another’s liened property.

הָא נָמֵי רַבָּה אַמְרַהּ – דְּאָמַר רַבָּה: הַשּׂוֹרֵף שְׁטָרוֹתָיו שֶׁל חֲבֵירוֹ – פָּטוּר!

The Gemara challenges this explanation: Rabba stated this principle, as well, and there would be no need for Rav Huna, son of Rav Yehoshua, to state it. As Rabba says: One who burns another’s documents, in which other people’s debts to him are recorded, is exempt, although the owner of the documents can no longer collect payment from liened property.

מַהוּ דְּתֵימָא, הָתָם הוּא דְּאָמַר לֵיהּ: נְיָירָא בְּעָלְמָא קְלַאי מִינָּךְ; אֲבָל הֵיכָא דְּחָפַר בָּהּ בּוֹרוֹת שִׁיחִין וּמְעָרוֹת, לִיחַיַּיב; קָא מַשְׁמַע לַן – דְּהָא הָכָא כְּמַאן דְּחָפַר בָּהּ בּוֹרוֹת שִׁיחִין וּמְעָרוֹת דָּמֵי, וְקָאָמַר: מַה שֶּׁעָשָׂה עָשׂוּי.

The Gemara answers: Rav Huna, son of Rav Yehoshua, states this principle lest you say that it is specifically there that he is exempt, as the perpetrator of the damage can say to the owner of the documents: I burned your mere paper, for which I am prepared to pay. But in a case where one dug pits, ditches, or caves on liened land, causing substantial damage, he should be liable to compensate the one holding the lien. Therefore, Rav Huna, son of Rav Yehoshua, teaches us that even in a case of substantial damage he is exempt, as the case here, where the ox was slaughtered, is like one who dug pits, ditches, or caves, as slaughter is considered substantial damage, and the tanna said that in this case what he did is done.

קָדְמוּ בַּעֲלֵי חוֹבוֹת (וְהִגְבִּיהוּ) [וְגָבוּהוּ]; בֵּין חָב עַד שֶׁלֹּא הִזִּיק, בֵּין הִזִּיק עַד שֶׁלֹּא חָב – לֹא עָשָׂה וְלֹא כְלוּם, לְפִי שֶׁאֵין מְשַׁלֵּם אֶלָּא מִגּוּפוֹ.

The Gemara continues to explain the baraita , which states: If creditors collected the innocuous ox first, whether its owner owed them before his ox caused damage or whether it caused damage before he owed them, they have done nothing, because restitution is paid only from the body of the ox.

בִּשְׁלָמָא הִזִּיק עַד שֶׁלֹּא חָב – נִיזָּקִין קָדְמוּ. אֲבָל חָב עַד שֶׁלֹּא הִזִּיק – בַּעַל חוֹב קְדֵים!

The Gemara asks: Granted, in the case where it caused damage before he owed them, the injured parties came first, and the ox is liened to the debt. But in the case where he owed them before it caused damage, the creditor collected it first, so why does he not have the preemptive right to the ox?