We begin on page 44a, at the second set of dots. The Sages taught: “The owner of the ox is innocent.” This refers to a case in which an ox kills a person. The Torah says that when an ox kills, the ox is put to death, whether it is a non-forewarned ox or a forewarned ox. Once it kills, the ox is put to death. The verse then says that the owner of the ox is innocent. What is he innocent of?
We learned on yesterday’s page that “innocent” may mean that he is innocent of deriving benefit from the carcass. He may not benefit from the meat, the hide, or anything else from the animal. That is one interpretation of the word “innocent.”
The Sages taught: “The owner of the ox is innocent.” The great point is that Rabbi Eliezer understands the word “innocent” as teaching that the owner is exempt from half of the ransom payment. We know that when a forewarned ox kills, its owner must pay a payment called a ransom to the victim’s family. One might have thought that when a non-forewarned ox kills, the owner must pay half of that ransom. Rabbi Eliezer therefore says that “the owner of the ox is innocent” means that he is innocent of half of the ransom.
Rabbi Akiva said to him: How could you even entertain the possibility that there is such a payment as half of the ransom in this case? A non-forewarned ox pays from its body. The owner does not pay from his own funds; the payment is limited to the value of the animal. If so, let the owner say, “Bring me the ox to court, and I will pay you half of the ransom from its value.” But the ox has been killed. From what body is he supposed to pay? There is no body left from which to collect.
If you tell me that the Torah imposes the full ransom payment from the owner’s personal funds in the case of a forewarned ox, then I understand how there can be a payment even when the animal is dead. But if you are speaking about a non-forewarned ox, whose payment comes from the animal itself, there can be no half-ransom payment after the ox has been killed.
Rabbi Eliezer replied: Is that what you think I meant? Did you really think I was speaking about a case in which the ox had already been killed? My case is one in which the ox is still alive. For example, the ox killed on the testimony of only one witness, and therefore it is not put to death. Alternatively, the owner himself admitted that his ox killed. Since he admitted his liability, the ox is not put to death.
Rabbi Eliezer was saying: You thought I did not understand that a non-forewarned ox pays only from its body? Of course I understand that. My case is one in which the animal remains alive. I would have thought that, nevertheless, the owner must pay half of the ransom.
The Gemara challenges the first possibility. If the owner himself admits that his ox killed, that is an admission concerning a fine. The ransom payment is a fine, and one who admits liability to a fine is exempt. Why, then, would there be any basis for requiring him to pay half of the ransom when he admitted his liability?
The Gemara answers that Rabbi Eliezer holds that the ransom payment is not merely a fine; it also serves as an atonement. Therefore, one might have thought that even when the owner admits that his ox killed, he should still be required to pay the ransom as an atonement. The verse teaches us that even though the ransom has an element of atonement, it is not required in the case of a non-forewarned ox that is to be put to death.
A second baraita presents a slightly different version of the discussion. Rabbi Eliezer said to Rabbi Akiva: Is that how you judge me? Did you think I was speaking about a case in which the ox had already been put to death? My case is one in which the ox remains alive. The ox intended to kill one person, but it killed another. Or it intended to kill an animal and killed a person.
The halachah is that an animal is put to death only when it intended to kill the person whom it actually killed. If it intended to kill one person but killed someone else, the animal is not put to death. Since the animal remains alive, one might have thought that the owner should pay half of the ransom. The verse therefore teaches that the owner of the ox is innocent even of that payment.
Thus, Rabbi Eliezer gives two possible cases in which the animal remains alive. The first is when the ox killed on the testimony of only one witness, or when the owner admitted the matter himself. But the Gemara immediately rejects that answer. An admission regarding a fine does not create liability, and the testimony of a single witness cannot extract money from a person. A single witness may require the defendant to take an oath, but cannot establish a monetary obligation.
The second answer is stronger: the ox intended to kill one person but killed another. Although the ox killed a person, it is not put to death, because it did not kill the person whom it intended to attack. Rabbi Eliezer’s point is that one might nevertheless think that the owner should pay half of the ransom. The verse teaches that he does not.
The Gemara then asks which of these two arguments Rabbi Eliezer stated first. One version says that he first gave the argument involving intention: the ox intended to kill one person but killed another. Generally, when a person presents several arguments in court, he presents the strongest argument first. According to this version, Rabbi Eliezer began with the stronger case.
Another version says that he first gave the weaker argument, involving the testimony of one witness or the owner’s admission. Perhaps he did not initially have the stronger argument available to him, so he began with the weaker one and later gave the stronger argument involving intention.
The Gemara explains the first version with a parable. It is like a fisherman casting a net into the sea. When he finds a large fish, he takes it. When he finds a small fish, he takes that one too. Since he has caught the large fish, he certainly takes it first. So too, when a person has a stronger argument, he presents that argument first.
The second version is explained with the same parable. A fisherman who finds a small fish does not throw it away, because he may not catch anything else. He takes the small fish. If he later catches a large fish, he throws the small fish aside and takes the large one. Similarly, Rabbi Eliezer first presented the weaker argument because he thought that might be all he had; when the stronger argument occurred to him, he presented that as well.
The Sages taught another interpretation of the words “the owner of the ox is innocent.” Rabbi Yosei the Galilean says that the owner is innocent of the payment for miscarriage. This refers to a non-forewarned ox that knocks down a pregnant woman and causes her to miscarry. The owner of that ox is not required to pay for the miscarriage.
Rabbi Akiva said: We already know this from the verse concerning men who fight. The Torah says that if men fight and they strike a pregnant woman so that she miscarries, the person who struck her must pay for the miscarriage. The verse specifically says “men,” and not oxen. If so, why do we need the additional verse stating that the owner of the ox is innocent?
The Gemara says that Rabbi Akiva had a strong argument. Rabbi Ulla, son of Rabbi Idi, explains that both verses are necessary. From the verse about men, I would have learned only that an animal comparable to a man is exempt. A man is always considered forewarned, because a person is responsible for his actions at all times. Therefore, I might have understood that only a forewarned ox is exempt from the payment for miscarriage, while a non-forewarned ox would still be liable. The verse about the owner of the ox being innocent teaches that even a non-forewarned ox is exempt.
The Gemara then asks: If that is the derivation, it seems to be going in the wrong direction. From the verse about men and not oxen, you would derive that a forewarned ox is exempt, while a non-forewarned ox is liable. Then the verse about the owner of the ox being innocent would come and teach that the non-forewarned ox is exempt. But why would we have thought that a forewarned ox is exempt while a non-forewarned ox is liable? The non-forewarned ox is ordinarily treated more leniently than the forewarned ox.
The Gemara responds with an expression meaning that the order has been reversed: the stronger case has been placed underneath the weaker case. It is as though the ordinary arrangement has been turned upside down. The derivation should not be understood as establishing that a forewarned ox is exempt while a non-forewarned ox is liable. Rather, both verses are needed to reach the proper conclusion.
Another explanation is offered. The verse concerning men and not oxen teaches that an ox is exempt from the payment for miscarriage. The comparison is made as follows: Just as men are forewarned, so too the oxen under discussion are forewarned. One could then reason by an a fortiori argument that a non-forewarned ox should certainly be exempt. The verse concerning the owner of the ox being innocent is necessary to overturn that possibility and teach that the non-forewarned ox is exempt, while the forewarned ox remains liable.
But the Gemara objects that this again appears backwards. The verse about the owner of the ox being innocent seems to imply that only a non-forewarned ox is exempt, while a forewarned ox is liable. Why would the more serious case be liable when the less serious case is exempt?
Abaye raises a further difficulty with this entire method of interpretation. Once we compare the case of oxen to the verse concerning men, we should encounter the same problem regarding humiliation payments. When men cause damage, they may be liable not only for the physical injury and the miscarriage but also for humiliation. An ox, however, is never liable for humiliation. Even if an ox embarrasses someone by injuring him, the owner does not pay a humiliation payment.
According to the proposed derivation, we should make the same comparison in the case of humiliation. Men pay humiliation, but oxen do not. Which oxen would be exempt? If we say that the exemption applies to forewarned oxen, then a non-forewarned ox should certainly be exempt by an a fortiori argument. Yet the verse says that the owner of the ox is innocent. It would then seem to suggest that a non-forewarned ox is exempt while a forewarned ox is liable for humiliation, which cannot be correct. There is no humiliation payment for an ox, whether it is non-forewarned or forewarned.
Abaye and Rava therefore offer a different understanding of the verses. The words “men” and not “oxen” do not refer to a case in which the woman died. If men intended to strike one another and a woman entered between them, and one of the men struck her and caused a miscarriage, the men pay for the miscarriage. But if the woman dies, the men are subject to the death penalty and are not required to make monetary payments.
The verse is describing a case in which there is no death penalty. If there is no fatal consequence, the men pay for the miscarriage. The phrase “and not oxen” teaches that oxen are not included in this rule. When an ox causes a miscarriage, the owner is not exempt because the ox is subject to a death penalty. No death penalty applies to the owner, and the animal’s death does not eliminate the owner’s monetary liability. The owner cannot say, “The ox killed someone, so the ox is being put to death and I owe nothing else.”
This is the great novelty of the verse concerning the owner of the ox being innocent: even when the ox causes the miscarriage, the owner is exempt from that payment. We might have distinguished between human beings and oxen by saying that with human beings, when there is a death penalty there is no monetary payment, whereas when there is no death penalty there is a monetary payment. We might then have said that an ox should be liable even when the woman dies. The verse teaches that the owner of the ox is innocent of the miscarriage payment.
The Gemara asks whether the distinction depends on the woman’s death. Perhaps the real issue is intention. A man is exempt from monetary payment when he intended to kill and is therefore subject to the death penalty. If he did not intend to kill the woman, he is liable for the monetary payment, whether or not she dies. The determining factor is not simply whether she died, but whether the person had the intention to kill.
According to this understanding, when the men were fighting and the woman entered between them, they did not intend to kill her. Even if she dies, there is no death penalty for killing her, because they did not intend to strike her. They therefore remain liable for the miscarriage payment. The phrase “men” teaches that the obligation depends on intention, not merely on the outcome.
One might then say that the same principle applies to oxen. If an ox intended to kill the woman, perhaps its owner should be exempt, just as a person who intended to kill is exempt from monetary payment. The verse “the owner of the ox is innocent” teaches that even in this case the owner is exempt from the payment for the miscarriage. This is a significant novelty: the animal may have intended to kill the woman, yet the owner does not pay the miscarriage payment.
The Gemara continues with another baraita. “The owner of the ox is innocent” teaches that the owner is exempt from the thirty-shekel payment when a non-forewarned ox kills a Canaanite servant. Ordinarily, when a forewarned ox kills a servant, the owner pays thirty shekels to the servant’s owner. The question is what happens when a non-forewarned ox kills the servant.
Rabbi Akiva had challenged Rabbi Eliezer earlier by asking how there could be a half-ransom payment when the ox itself had been killed. Here, too, one might ask the same question. A non-forewarned ox pays only from its body. If the Torah requires a fixed payment of thirty shekels for a servant, how can that payment be collected from the ox? Let the owner say, “Bring me the ox to court, and I will pay the thirty shekels from its value.” But the ox has already been killed. There is no longer a body from which to collect.
The Gemara answers that this baraita may be discussing a case in which the owners slaughtered the ox before the court issued its judgment. One might then think that the animal is available, because it is still physically present. The Gemara teaches that since the ox was liable to be put to death, slaughtering it does not remove the prohibition against deriving benefit from it. It remains forbidden to benefit from the animal, and therefore it cannot serve as the source of the payment.
At this point the Gemara returns to the earlier exchange between Rabbi Eliezer and Rabbi Akiva. Rabbi Akiva had argued that there could be no half-ransom payment because a non-forewarned ox pays from its body, and the ox had been killed. Rabbi Eliezer responded that his case involved an ox that remained alive, such as an ox that intended to kill one person but killed another. The Gemara asks why Rabbi Akiva did not simply give the same answer in the case of the servant.
The Gemara answers that the two cases are different. In Rabbi Eliezer’s case, the ox intended to kill one person but killed another. Since it did not kill the person it intended to kill, the ox is not subject to the death penalty. Because the animal is not subject to death, one might think that its body remains available for collection and that the owner should pay half of the ransom. The verse teaches that even in that case there is no half-ransom payment.
In the case of Rabbi Akiva’s servant, however, the ox actually killed with intention. It intended to kill the servant whom it killed, and the ox is therefore subject to the death penalty from the outset. Since it is subject to death, there is no possibility of collecting from its body. Rabbi Akiva therefore does not need the verse to teach that the owner is exempt from a half-ransom payment; the exemption follows from the fact that the animal is already subject to death.
Rabbi Eliezer’s case is different because the animal is not subject to death. Without the verse, one might have thought that the animal’s body remains available and that a half-ransom payment could be collected. The verse “the owner of the ox is innocent” teaches that even there, the owner is exempt.
The discussion then turns to whether Rabbi Akiva held that when a non-forewarned ox damages a person, the owner pays the full amount of the damage from his personal assets. Although Rabbi Akiva appears to say in the Mishnah that an ox that damages a person pays the full damage, Rabbi Zeira said in the name of Rabbi Asi that Rabbi Akiva later retracted or qualified that position.
A baraita states that Rabbi Akiva says: One might think that the owner of a non-forewarned ox pays from his personal assets when the ox damages a person. The verse therefore says that the owner pays according to this judgment: the payment is from the animal’s body, not from the owner’s other property. Thus, Rabbi Akiva ultimately holds that even when a non-forewarned ox damages a person, the payment is limited to the value of the ox.
If so, the verse concerning the servant is still necessary. One might otherwise have thought that because the payment for a servant is a fixed thirty shekels, the owner must pay from his personal assets even when the ox is non-forewarned. The verse teaches that the payment is still limited to the body of the ox.
Rava offers another explanation of why the verse concerning the servant is necessary. There is a special stringency in the case of a servant: whether the servant is worth one shekel or one hundred shekels, the payment for a forewarned ox is thirty shekels. This fixed payment may be greater than the servant’s actual value. By contrast, when an ox kills a free person, the ransom payment is based on the value of the person.
Because the Torah establishes a fixed thirty-shekel payment for a servant, one might have thought that even when a non-forewarned ox kills a servant, the owner must pay the thirty shekels from his personal assets. After all, this is not an ordinary payment limited to the animal’s value. The verse concerning the owner of the ox being innocent teaches that the non-forewarned ox is exempt from that fixed payment as well.
One might object that the case of a servant also contains a leniency: if the ox is worth more than thirty shekels, the owner of a forewarned ox pays only thirty. Thus, the rule concerning a servant is both more stringent and more lenient than the ordinary rule. Nevertheless, the fact remains that when the servant is worth only one shekel, the owner pays thirty. That additional obligation could have led us to think that even a non-forewarned ox requires a payment from the owner’s personal assets.
The verse therefore teaches that the payment remains limited to the ox’s body. The fixed thirty-shekel rule does not transform the payment of a non-forewarned ox into a payment from the owner’s personal property. That is the purpose of the verse stating that the owner of the ox is innocent.