Bava Kamma 39b

מִמַּנְעִי וְלָא עָבְדִי. רַבִּי יוֹסֵי בַּר חֲנִינָא אָמַר מֵעֲלִיַּית אַפּוֹטְרוֹפּוֹס – וְחוֹזְרִין וְנִפְרָעִין מִן הַיְּתוֹמִים לְכִי גָדְלִי.

people will refrain from becoming stewards, fearing that they would incur a financial loss by having to pay for damage caused by the orphans’ animals. By contrast, Rabbi Yosei bar Ḥanina says that it is collected from the superior-quality property of the steward, and there is no concern that people will refrain from becoming stewards, because if they pay for the orphans they are subsequently repaid by the orphans when they grow up.

וּ״מַעֲמִידִים לָהֶן אַפּוֹטְרוֹפִּין לְתָם לִגְבּוֹת מִגּוּפוֹ״ – תַּנָּאֵי הִיא,

The Gemara notes: And the matter of whether or not the court appoints stewards for the halakhically incompetent owners of an innocuous ox for the purpose of collecting damages from the sale of its body if it gores is subject to a dispute between tanna’im .

דְּתַנְיָא: שׁוֹר שֶׁנִּתְחָרְשׁוּ בְּעָלָיו, וְשֶׁנִּשְׁתַּטּוּ בְּעָלָיו, וְשֶׁהָלְכוּ בְּעָלָיו לִמְדִינַת הַיָּם – יְהוּדָה בֶּן נְקוֹסָא אָמַר סוֹמְכוֹס: הֲרֵי הוּא בְּתַמּוּתוֹ עַד שֶׁיָּעִידוּ בּוֹ בִּפְנֵי הַבְּעָלִים. וַחֲכָמִים אוֹמְרִים: מַעֲמִידִין לָהֶן אַפּוֹטְרוֹפִּין, וּמְעִידִין בָּהֶן בִּפְנֵי אַפּוֹטְרוֹפִּין.

As it is taught in a baraita : With regard to an ox whose owner became a deaf-mute, or whose owner became an imbecile, or whose owner went overseas, if the ox gores, Yehuda ben Nakosa said that Sumakhos said: It retains its status of innocuousness until the court renders it forewarned in the presence of the owner. And the Rabbis say: The court appoints stewards for them, and the ox is rendered forewarned in the presence of the stewards.

נִתְפַּקֵּחַ הַחֵרֵשׁ, נִשְׁתַּפָּה הַשּׁוֹטֶה וְהִגְדִּיל הַקָּטָן – וּבָאוּ בְּעָלָיו מִמְּדִינַת הַיָּם, יְהוּדָה בֶּן נְקוֹסָא אָמַר סוֹמְכוֹס: חָזַר לְתַמּוּתוֹ, עַד שֶׁיָּעִידוּ בּוֹ בִּפְנֵי בְעָלִים. רַבִּי יוֹסֵי אָמַר: הֲרֵי הוּא בְּחֶזְקָתוֹ.

If the deaf-mute regained his hearing, or the imbecile became halakhically competent, or the minor reached majority, or its owner came back from overseas, Yehuda ben Nakosa said that Sumakhos said: The ox has reverted to its previous status of innocuousness, until it is rendered forewarned in the presence of the owner. Rabbi Yosei said: The ox retains its status of being forewarned.

אֲמַרוּ: מַאי ״הֲרֵי הוּא בְּתַמּוּתוֹ״ דְּקָאָמַר סוֹמְכוֹס? אִילֵּימָא דְּלָא מִיַּיעַד כְּלָל – הָא מִדְּקָתָנֵי סֵיפָא ״חָזַר לְתַמּוּתוֹ״, מִכְּלָל דְּאִיַּיעַד!

The Sages said: What did Sumakhos mean by saying that it retains its status of innocuousness? If we say that he meant that it is not rendered forewarned at all, and is still considered innocuous, from the fact that Sumakhos himself teaches in the latter clause of the baraita that the ox has reverted to its previous status of innocuousness, it is clear by inference that previously it was rendered forewarned.

אֶלָּא מַאי ״הֲרֵי הוּא בְּתַמּוּתוֹ״ – הֲרֵי הוּא בִּתְמִימוּתוֹ, דְּלָא מְחַסְּרִינַן לֵיהּ. אַלְמָא אֵין מַעֲמִידִין אַפּוֹטְרוֹפּוֹס לְתָם לִגְבּוֹת מִגּוּפוֹ. וַחֲכָמִים אוֹמְרִים: מַעֲמִידִין לָהֶן אַפּוֹטְרוֹפּוֹס, וּמְעִידִין לָהֶן בִּפְנֵי אַפּוֹטְרוֹפּוֹס – אַלְמָא מַעֲמִידִין אַפּוֹטְרוֹפּוֹס לְתָם לִגְבּוֹת מִגּוּפוֹ.

Rather, what did Sumakhos mean by saying that it retains its status of innocuousness [ betammuto ]? He meant that it retains its completeness [ bitmimuto ], as we do not reduce its owner’s share of it by collecting compensation from the sale of its body. Rather, the injured party must wait until the owner becomes competent or returns. Apparently, the court does not appoint a steward for the owner of an innocuous ox to enable the injured party to collect damages from its body. And the Rabbis, who disagree with Sumakhos, say that the court appoints a steward for the owner and renders the ox forewarned in the presence of the steward. Apparently, they hold that the court does appoint a steward for the owner of an innocuous ox to enable the injured party to collect damages from its body.

וְסֵיפָא בְּמַאי קָמִיפַּלְגִי? רְשׁוּת מְשַׁנָּה אִיכָּא בֵּינַיְיהוּ – סוֹמְכוֹס סָבַר: רְשׁוּת מְשַׁנָּה, וְרַבִּי יוֹסֵי סָבַר: רְשׁוּת אֵינָהּ מְשַׁנָּה.

The Gemara asks: And in the latter clause of the baraita , with regard to what principle do they disagree? The Gemara answers: The difference between them is with regard to whether a change of custody changes the status of the ox. Sumakhos holds that a change of custody changes the status of the ox, whereas Rabbi Yosei holds that a change of custody does not change it; rather, it is determined by the actions of the ox itself, regardless of its custody.

תָּנוּ רַבָּנַן: שׁוֹר חֵרֵשׁ שׁוֹטֶה וְקָטָן שֶׁנָּגַח – רַבִּי יַעֲקֹב מְשַׁלֵּם חֲצִי נֶזֶק.

§ The Sages taught in a baraita : With regard to an ox that gored that belonged to a deaf-mute, an imbecile, or a minor, Rabbi Ya’akov pays half the cost of the damage.

רַבִּי יַעֲקֹב מַאי עֲבִידְתֵּיהּ? אֶלָּא אֵימָא, רַבִּי יַעֲקֹב אוֹמֵר: מְשַׁלֵּם חֲצִי נֶזֶק.

The Gemara asks: What did Rabbi Ya’akov do that he should pay for the damage? Rather, emend the baraita and say: Rabbi Ya’akov says that he pays half the cost of the damage.

בְּמַאי עָסְקִינַן? אִי בְּתָם – פְּשִׁיטָא, דְּכוּלֵּי עָלְמָא נָמֵי חֲצִי נֶזֶק הוּא דִּמְשַׁלֵּם! וְאִי בְּמוּעָד, אִי דְּעָבְדִי לֵיהּ שְׁמִירָה – כְּלָל כְּלָל לָא בָּעֵי לְשַׁלּוֹמֵי, וְאִי דְּלָא עָבְדִי לֵיהּ שְׁמִירָה – כּוּלֵּיהּ נֶזֶק בָּעֵי שַׁלּוֹמֵי!

The Gemara asks: With what are we dealing? If it is with regard to an innocuous ox, isn’t this obvious? Everyone else also holds that one pays half the cost of the damage caused by their ox that gored, so what is the novel element of Rabbi Ya’akov’s statement? And if it is with regard to a forewarned ox it is unclear why the owner pays half the cost of the damage, as if it is a case where he provided adequate safeguarding for it he is not required to pay at all, and if it is a case where he did not provide adequate safeguarding for it he is required to pay the entire cost of the damage.

אָמַר רָבָא: לְעוֹלָם בְּמוּעָד, וְהָכָא בְּמַאי עָסְקִינַן – דְּעָבְדִי שְׁמִירָה פְּחוּתָה, וְלָא עָבְדִי לֵיהּ שְׁמִירָה מְעוּלָּה.

Rava said: Actually, Rabbi Ya’akov stated his ruling with regard to a forewarned ox, and here we are dealing with a case where he provided reduced safeguarding and did not provide superior safeguarding for it.

וְרַבִּי יַעֲקֹב סָבַר לַהּ כְּרַבִּי יְהוּדָה – דְּאָמַר: צַד תַּמּוּת בִּמְקוֹמָהּ עוֹמֶדֶת; וְסָבַר לַהּ כְּרַבִּי יְהוּדָה – דְּאָמַר: מוּעָד סַגִּי לֵיהּ בִּשְׁמִירָה פְּחוּתָה;

And Rabbi Ya’akov holds in accordance with the opinion of Rabbi Yehuda, who says that when an ox is rendered forewarned the liability for its element of innocuousness remains in place. In other words, with regard to half of the damages, it is treated like an innocuous ox, and it is treated as a forewarned ox only with regard to the other half of the damages. Therefore, half the cost of the damage is still collected from the proceeds of the sale of its body. And furthermore, with regard to another issue Rabbi Ya’akov holds in accordance with the opinion of Rabbi Yehuda, who says that although superior safeguarding is necessary for an innocuous ox, reduced safeguarding is sufficient for a forewarned ox. Consequently, one who safeguards his forewarned ox in this manner is exempt from paying the additional half that he would be liable to pay due to the ox’s forewarned status. He is liable with respect to the half that he pays due to its remaining element of innocuousness.

וְסָבַר לַהּ כְּרַבָּנַן – דְּאָמְרִי: מַעֲמִידִין אַפּוֹטְרוֹפּוֹס לְתָם לִגְבּוֹת מִגּוּפוֹ.

And Rabbi Ya’akov also holds in accordance with the opinion of the Rabbis, who say that the court appoints a steward for the owner of an innocuous ox to enable the injured party to collect damages from its body. Therefore, Rabbi Ya’akov rules that in the case in the baraita , where a forewarned ox owned by a halakhically incompetent person is safeguarded in a reduced fashion, half the cost of the damage must be paid from the proceeds of the sale of its body.

אֲמַר לֵיהּ אַבָּיֵי: וְלָא פְּלִיגִי?! וְהָתַנְיָא: שׁוֹר שֶׁל חֵרֵשׁ, שׁוֹטֶה וְקָטָן שֶׁנָּגַח – רַבִּי יְהוּדָה מְחַיֵּיב, וְרַבִּי יַעֲקֹב אוֹמֵר: חֲצִי נֶזֶק הוּא דִּמְשַׁלֵּם! אָמַר רַבָּה בַּר עוּלָּא: מַה שֶּׁמְּחַיֵּיב רַבִּי יְהוּדָה פֵּירֵשׁ רַבִּי יַעֲקֹב.

Abaye said to Rava: But do Rabbi Yehuda and Rabbi Ya’akov not disagree with regard to this matter? But isn’t it taught in a baraita that with regard to an ox of a deaf-mute, an imbecile, or a minor, that gored, Rabbi Yehuda deems the owner liable, and Rabbi Ya’akov says that he pays only half the cost of the damage? Rabba bar Ulla says: There is no disagreement here; Rabbi Ya’akov merely explained what Rabbi Yehuda deems him liable to pay.

וּלְאַבָּיֵי דְּאָמַר פְּלִיגִי, בְּמַאי פְּלִיגִי?

The Gemara asks: And according to Abaye, who says that Rabbi Ya’akov and Rabbi Yehuda disagree, with regard to what principle do they disagree?

אָמַר לָךְ: הָכָא בְּמַאי עָסְקִינַן – בְּמוּעָד, וְלָא נַטְרֵיהּ כְּלָל.

The Gemara answers: Abaye could have said to you that here we are dealing with a forewarned ox whose owner did not safeguard it at all and that is consequently liable for the full cost of the damage.

רַבִּי יַעֲקֹב סָבַר לַהּ כְּרַבִּי יְהוּדָה בַּחֲדָא, וּפְלִיג עֲלֵיהּ בַּחֲדָא. סָבַר כְּרַבִּי יְהוּדָה בַּחֲדָא – דְּאִילּוּ רַבִּי יְהוּדָה סָבַר: צַד תַּמּוּת בִּמְקוֹמָהּ עוֹמֶדֶת; וּפְלִיג עֲלֵיהּ בַּחֲדָא – דְּאִילּוּ רַבִּי יְהוּדָה סָבַר: מַעֲמִידִין לָהֶן אַפּוֹטְרוֹפּוֹס לְתָם לִגְבּוֹת מִגּוּפוֹ, וְרַבִּי יַעֲקֹב סָבַר: אֵין מַעֲמִידִין, וְלָא מְשַׁלֵּם אֶלָּא פַּלְגָא דְמוּעָד.

And Rabbi Ya’akov holds in accordance with the opinion of Rabbi Yehuda with regard to one issue and disagrees with him with regard to one issue. He holds in accordance with the opinion of Rabbi Yehuda with regard to one issue, as Rabbi Yehuda holds that when an ox is rendered forewarned its element of innocuousness remains in its place, and Rabbi Ya’akov agrees. And he disagrees with him with regard to one issue, as Rabbi Yehuda holds that the court appoints a steward for the owner of an innocuous ox to enable the injured party to collect damages from its body, whereas Rabbi Ya’akov holds that the court does not appoint a steward. Therefore, the owner is exempt from paying the half for which he would be liable due to the ox’s element of innocuousness, and pays only the half damages he is liable to pay due to its forewarned status.

אֲמַר לֵיהּ רַב אַחָא בַּר אַבָּיֵי לְרָבִינָא: בִּשְׁלָמָא לְאַבָּיֵי דְּאָמַר פְּלִיגִי – שַׁפִּיר; אֶלָּא לְרָבָא דְּאָמַר לָא פְּלִיגִי – אַדְּמוֹקֵי לַהּ בְּמוּעָד, נוֹקְמַהּ בְּתָם!

Rav Aḥa bar Abaye said to Ravina: Granted, according to Abaye, who says that they disagree, the explanation works out well. But according to Rava, who says that they do not disagree, instead of interpreting the baraita as referring to a forewarned ox, he should have interpreted it as referring to an innocuous ox.