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We begin today’s daf on 42b, six lines from the bottom, with the words of Rav Papa. Let us review where we are holding in this discussion.
On yesterday’s daf, we had a braita concerning a person who entered a carpenter’s store without permission. The carpenter was cutting wood, and a piece of wood flew off and killed the man. The ruling of the braita was that, since the man entered without permission, the carpenter was exempt from exile and from all liability. However, if the man had entered with permission—if the carpenter had seen him come in and had allowed him to enter—the carpenter would be liable.
The Gemara asked: What does “liable” mean? Rav Yosef and Rabbi Eliezer explained that he is liable for the four payments if he injured the person. Even if a person is not deliberately negligent, he must pay for damage that he causes. In this case, however, the carpenter is considered negligent because he allowed the man to enter and then continued working. He is therefore liable for the four payments, but he is exempt from the payment for embarrassment, because embarrassment is paid only when the person intended to cause injury.
The Gemara also analyzed the statement that he is exempt from exile. Rava offered one interpretation: “Exempt from exile” means that this does not even qualify as a case requiring exile. He brought a proof from the case of two people who entered a forest, each entering his own domain. In that case, the Gemara’s language was that each person entered his fellow’s domain. Here, however, the person entered the domain of his fellow, meaning that he entered another person’s domain, and therefore the carpenter is exempt from exile.
Rabbah objected: Why should he certainly not be liable for exile? The reason he is exempt is that his act is considered almost deliberate. Exile applies only to an unintentional killing; a person who kills deliberately does not go into exile. Since the carpenter allowed the man to enter, he should have been careful. According to Rabbah, this was also the intention of Rabbi Yosef: “Exempt from exile” does not mean that the case is less serious than a case requiring exile. It means that the carpenter is more culpable, because his conduct was too close to deliberate.
That was how we understood the braita on yesterday’s daf. Rav Papa now offers a different way to understand the position of Rabbi Yosef. He says that Rabbi Yosef’s statement was referring to the first case of the braita, in which the person entered the carpenter’s store without permission and was struck by a piece of wood. In that case, the carpenter is liable for the four payments. Why? We said that one is liable for the four payments only when he was negligent. Here, although the man entered without permission, the carpenter saw him. Once he saw the man enter the store, he should have been aware of his presence and should have taken precautions. Since he failed to do so, he is considered negligent and is liable for the four payments.
At the same time, he is exempt from exile in that case because he is considered completely coerced. The man entered the store without permission. What more could one expect from the carpenter? According to this understanding, the carpenter is liable for the four payments but exempt from exile because he was not responsible for the man’s entering the store.
The Gemara analyzes the difference between the two interpretations. According to the opinion that Rabbi Yosef’s statement referred to the second case of the braita, in which the man entered with permission, he would certainly agree that in the first case, in which the man entered without permission, the carpenter is exempt from exile, since he was coerced. But according to the opinion that Rabbi Yosef’s statement referred to the first case, in which the man entered without permission, what would Rabbi Yosef say about the second case, in which the man entered with permission? Would he say that the carpenter is liable for exile?
The Gemara raises a contradiction from a case involving a blacksmith. A man entered a blacksmith’s shop, where there was a fire. As the blacksmith was working, sparks flew off and killed the man. Even if the man had received permission to enter, the blacksmith would be exempt from exile. This seems to contradict the interpretation that a person who permits someone to enter is liable for exile.
The Gemara answers that the man in the case of the blacksmith was the blacksmith’s apprentice. Since he was an apprentice, he had a certain right to be there. The Gemara challenges this answer: Merely because he was an apprentice, does that mean he could be killed? Why should the blacksmith be exempt from exile simply because the person was his student?
The Gemara explains that the blacksmith had told the apprentice to leave. The apprentice did not listen. The Gemara again asks: Why should the blacksmith be exempt? The apprentice’s failure to listen does not permit the blacksmith to kill him.
The Gemara answers that the blacksmith thought the apprentice had left. The case is one in which the apprentice entered the shop, the blacksmith told him to move away, and the apprentice did not listen. The blacksmith assumed that he had obeyed and continued working. Suddenly, a spark flew and killed the apprentice. In that situation, the blacksmith is considered coerced. He had allowed the apprentice to enter, but he then told him to leave and believed that he had done so.
The Gemara asks why it was necessary to give a case involving an apprentice. The same ruling could have been taught with an ordinary person: A man enters a shop, the owner tells him to leave, and the man does not listen. Why is the owner exempt from exile?
The Gemara answers that an ordinary person does not have the same fear of the shopkeeper or craftsman. When an ordinary person is told to leave, the shopkeeper cannot assume that he will obey. Therefore, if the shopkeeper continues working and kills him, he is liable for exile. An apprentice, however, fears his teacher. When the teacher tells him to leave, the teacher assumes that he will listen and therefore does not continue to take account of his presence. If the apprentice remains and is killed, the teacher is considered coerced.
According to this final version, Rabbi Yosef’s statement referred to the first case, in which the man entered without permission. In that case, the carpenter is exempt from exile because he is coerced. If the man entered with permission, however, the carpenter would be liable for exile. The blacksmith’s case is different because the person who entered was an apprentice. Since the blacksmith assumed that the apprentice would obey him and leave, he is exempt from exile. An ordinary person who enters with permission and then refuses to leave would make the craftsman liable for exile.
Rav Zevid taught another version in the name of Rava. This is a third interpretation of the statement of Rabbi Yosef. Until now, we had two versions: the first said that Rabbi Yosef was referring to the second case, in which the man entered with permission; the second said that he was referring only to the first case, in which the man entered without permission.
According to the third version, Rabbi Yosef’s statement was referring to an entirely different case. A person was chopping wood. He struck a tree with an axe, and a piece of wood flew off and killed someone. The Torah says that the object “found” the person, excluding a case in which the person went out and placed himself in the path of the object. For example, a person threw a stone, and another person stuck out his head and allowed the stone to hit him. Since the injured person performed an action by placing himself in its path, the thrower is exempt from exile.
Nevertheless, if the thrower injured the person rather than killing him, he is liable for the four payments. The reason is that he was negligent: He threw a stone in an area where people were present. The person’s action may exempt the thrower from exile, because the Torah speaks of an object finding a person rather than a person finding the object, but the thrower remains negligent with respect to the injury. Therefore, he must pay the four payments.
According to the opinion that Rabbi Yosef’s statement referred to this case, he would certainly agree that in the carpenter’s case, even when the man entered without permission, the carpenter is liable for the four payments. The carpenter saw the man enter and should have been careful. However, according to the opinion that Rabbi Yosef’s statement referred to the carpenter’s case, there is a distinction. In the carpenter’s case, the carpenter saw the man enter, whereas in the case of the stone, the thrower did not see anyone. He merely threw the stone into an area where people happened to be present.
The practical difference between these versions concerns the four payments. According to the interpretation that liability applies when a person saw the victim enter his store, the carpenter is liable for the four payments even though the victim entered without permission. According to the interpretation based on the case of the stone, the thrower is liable because he threw the stone in a public area, even though he did not see anyone. The carpenter, however, might be exempt if he did not actually see the person in the store.
The Gemara now discusses another case. Workers came to their employer’s house to collect their wages. As they entered the house, the employer’s ox gored them, or his dog bit them, and they died. The employer is exempt from paying for the death. Normally, when a person’s animal kills, the owner must pay kofer, a payment made to the heirs. In this case, however, there is no payment of kofer.
Others say that workers have the right to claim their wages from the employer. The Gemara now examines the details of the case. If the employer is frequently found in the city, meaning that he can be found there, why would the workers have the right to enter his house to collect their wages? They could find him elsewhere in the city. If they entered his house without permission, it would seem that the employer should be exempt.
If the case is one in which the employer is found only at home, however, the workers certainly have a right to enter his house to collect their wages. Why, then, should the employer be exempt? The Gemara answers that the case is one in which the employer is sometimes at home and sometimes elsewhere. He can be found, but not consistently in one location.
According to one interpretation, the workers knocked on the door, and the employer answered, “Yes.” The question is how to understand the word “yes.” Does it mean, “Come in,” or does it mean, “Wait outside; I will come out and bring you your wages”?
One opinion understands “yes” to mean “Come in.” Since the employer invited the workers inside, if the dog killed them, the employer is liable. The workers had a right to enter because the employer told them to come in.
The other opinion understands “yes” to mean, “Stay where you are; I will come outside and pay you.” According to that interpretation, the employer did not grant them permission to enter. If they entered anyway and the dog killed them, the employer is exempt.
The Gemara brings a braita to support the interpretation that “yes” means, “Stay where you are.” The braita states that a worker entered the employer’s house to collect his wages, and the employer’s ox gored him or his dog bit him and killed him. Even though the worker entered the house, the employer is exempt. The Gemara explains that this cannot mean that the employer told him to come in, because in that case the employer would certainly be liable. Rather, the employer called to him from the doorway and said, “Yes,” meaning, “Stay where you are; do not come in.” The worker entered on his own, and the employer is therefore exempt. This supports the opinion that interprets “yes” as an instruction to remain outside.
The next mishnah discusses two oxen that are both still classified as tam. They guard one another, and each one damages the other. How is the payment calculated? The damage caused by one ox is set against the damage caused by the other. The difference between the two amounts is divided, and the owner of the ox that caused the greater damage pays half of that difference.
For example, if one ox caused one hundred dollars of damage and the other caused fifty dollars of damage, there is a difference of fifty dollars. Half of that difference is twenty-five dollars. The owner of the ox that caused the greater damage pays twenty-five dollars. Since both animals damaged one another, both parties have claims, and the difference between the damages is calculated.
If both oxen are muad and they gore one another, the same basic calculation is made, but the payment is full damage with respect to the difference. If one ox caused one hundred dollars of damage and the other caused fifty dollars, the owner of the ox that caused the greater damage pays the fifty-dollar difference.
If one ox is a tam and the other is a muad, the muad pays full damage for the difference, while the tam pays half damage for the difference. Thus, the law of the muad and the law of the tam are applied according to the status of each animal.
The mishnah then discusses two people who damage one another. A person is always considered muad, and therefore each person pays the full damage for the difference between what he caused and what the other person caused. A person is not treated like an animal whose liability changes after three incidents. A human being is always considered warned and pays full damage.
The mishnah next discusses an animal and a person who damage one another. If a muad ox gores a person, and the person damages the ox, both are considered muad in this context. The difference between the two damages is calculated, and the party who caused the greater damage pays the full difference.
If a person damages a tam ox, while the tam ox damages the person, the person pays full damage for the difference. The tam ox, even when it damages a person, pays only half damage for the difference.
Rabbi Akiva says that even a tam ox that damages a person pays full damage. According to him, the rule of the tam applies when one ox damages another ox, but when an ox damages a person, it pays full damage even the first time. The dispute between the first opinion and Rabbi Akiva concerns precisely the scope of the rule of the tam. Everyone agrees that a person is always considered muad and pays full damage. The question concerns an ox: When an ox damages another ox, it is initially a tam; but when an ox damages a person, is it also a tam, or does it pay full damage immediately?
The Gemara seeks the source for the first opinion. There is a braita based on the passage discussing an ox that damages a person. The verse says, “Whether it gores a boy or a girl, according to this law it shall be done to him.” The words “according to this law” indicate that the law stated earlier applies here as well.
The first opinion understands this to mean that the law of an ox damaging another ox applies to an ox that damages a person. Just as an ox is a tam for the first three incidents and becomes a muad afterward, so too an ox that damages a person is initially a tam and later becomes a muad.
Rabbi Akiva, however, understands “according to this law” differently. The passage immediately preceding the case of an ox that damages a person discusses a muad ox, and the passage before that discusses a tam ox. Rabbi Akiva says that the verse refers to the passage immediately preceding it, the case of the muad, rather than to the earlier passage concerning a tam. Therefore, when an ox damages a person, it pays full damage, like a muad.
The Gemara explains that there are three consecutive passages: one concerning a tam ox, one concerning a muad ox, and one concerning an ox that gores a person. When the last passage says, “According to this law,” the first opinion understands it as referring to the general law of an ox damaging another ox, including both a tam and a muad. Rabbi Akiva understands it as referring specifically to the immediately preceding case of a muad. Thus, according to Rabbi Akiva, an ox that damages a person pays full damage from the outset.
The Gemara then asks how far this comparison to a muad extends. If an ox that damages a person is treated like a muad, does the owner have to pay even beyond the value of the animal that caused the damage? For example, if the damage is two hundred dollars and the ox is worth only one hundred dollars, must the owner pay the additional one hundred dollars from his own assets, as in the case of a muad?
The Gemara answers that the ox is like a muad with respect to paying full damage, but it is not entirely like a muad. The payment is limited to the value of the animal that caused the damage. The owner does not pay beyond that value. Thus, it occupies an intermediate position: It pays full damage, but only from the body of the animal.
The Gemara asks what the first opinion does with the additional word “this.” According to that opinion, the verse teaches that the law of an ox damaging a person is the same as the law of an ox damaging another ox. What does the additional word come to exclude?
The Gemara answers that it excludes the four payments. When a person injures another person, he may be liable for the four payments, in addition to the basic payment for damage. An ox that injures a person, however, does not pay those additional payments. The verse teaches that the law of an ox is similar to the law of an ox in the relevant respect, but not to the law of a person who injures another person.
The Gemara then asks what Rabbi Akiva does with this word. Rabbi Akiva has a verse to teach that an ox that damages a person pays full damage, so why is the additional wording necessary?
The Gemara explains that, without this additional verse, one might have thought that when an ox damages a person, the owner is exempt from the payment for pain, because pain is not a direct monetary loss in the same way as damage. The verse teaches that the ox is not liable for any of the additional payments that apply when a person injures another person. It does not pay for pain, lost work, or medical expenses. The owner pays for the damage itself, but not for those other payments.
The Gemara now returns to a case in which an ox worth one hundred dollars gored an animal worth two hundred dollars. Since the damaged animal is dead and has no remaining value, the damage is two hundred dollars. But because the ox was a tam, the owner pays only half the damage, one hundred dollars. The mishnah says that the injured party takes the damaging ox, because the ox itself is worth the one hundred dollars that must be paid.
The Gemara asks whether this means that the injured party must take the ox itself, or whether the owner of the damaging ox may instead pay one hundred dollars and retain the ox. The Gemara begins by saying that the mishnah appears to follow Rabbi Akiva.
There is a well-known dispute between Rabbi Yishmael and Rabbi Akiva concerning how payment is made when one ox damages another. Everyone agrees that the payment for a tam is half the damage, but they disagree about the meaning of the verse that requires the damaged party to evaluate the ox.
Rabbi Yishmael understands the verse to mean that the damaging ox is evaluated in court. The court determines that the ox is worth one hundred dollars, and the owner of the ox pays that amount in cash. The damaged party receives money, while the damaging ox remains with its owner.
Rabbi Akiva understands the verse to mean that the damaged party acquires the ox itself. The court evaluates the ox at one hundred dollars, and the damaged party takes the ox as payment. According to Rabbi Akiva, the damaged party receives the animal rather than money.
The mishnah appears to say that the damaged party takes the ox, which indicates that it follows Rabbi Akiva. The Gemara asks what lies at the root of their dispute.
Rabbi Yishmael says that the owner of the damaged ox is like a creditor. The damaging ox remains the property of the owner, and the injured party merely has a claim for money. Therefore, the owner can pay the debt in cash.
Rabbi Akiva, however, says that the injured party becomes a partner in the damaging ox. How does this partnership arise? The Torah states that when one ox damages another, the two owners divide the value of the live ox. Rabbi Akiva understands this to mean that the Torah makes the owner of the damaging ox and the owner of the damaged ox partners in the animal. Therefore, each has rights in it.
In the case in which the entire value of the damaging ox equals the amount owed, the injured party can take the entire ox. His share in the animal is the full amount of the payment that he is owed. That is the position of Rabbi Akiva.
Rabbi Akiva’s position produces a practical difference. Suppose the injured party consecrated the damaging ox. According to Rabbi Yishmael, the injured party is merely a creditor and has no ownership in the ox. He therefore cannot consecrate it. According to Rabbi Akiva, he is a partner in the ox and can consecrate his share.
The Gemara asks what the law is if the owner of the damaging ox sold it before the case came to court. According to Rabbi Yishmael, what is the ruling? Since the ox belongs to the owner, it would seem that he may sell it. On the other hand, the injured party has a lien on the ox, because if the owner does not produce the cash, the injured party can take the ox. Perhaps, therefore, the owner may not sell it in a way that removes the injured party’s claim.
The Gemara answers that the sale is valid in a limited sense. The purchaser may use the ox for plowing, but if the injured party comes to collect his payment, he may take the ox from the purchaser. The purchaser does not have to be compensated for the use of the ox for plowing. Thus, the sale is effective with respect to plowing, but it does not remove the injured party’s lien.
The Gemara draws a comparison to a person who borrows money and then sells property. Normally, a creditor cannot follow ordinary movable property that the borrower sold. The creditor cannot go to the purchaser and repossess the item merely because the borrower owed him money.
The Gemara distinguishes this case by saying that the item was designated as collateral, an arrangement called apotiki. The borrower said to the lender, “You will collect your payment from this item.” When a particular item is designated in this way, the lender has a lien on it even if it is sold.
The Gemara gives the example of a servant designated as collateral. If a person borrowed money and said, “You will be paid from this servant,” and he then sold the servant, the creditor may collect the servant from the purchaser. In that case, there is public knowledge of the lien. People know that servants may be designated as collateral, just as there is public knowledge concerning land.
With an ordinary ox, however, there is no public knowledge that it was designated as collateral. If a person borrows money and says that an ordinary ox will serve as collateral, and then sells the ox, the creditor cannot necessarily repossess it from the purchaser, because the purchaser had no reason to know of the lien.
A goring ox is different. A goring ox is known in the area, and people are aware of its history. Therefore, when the owner designates it as collateral, the purchaser should know that there is a lien on it. The injured party can consequently follow the ox and collect it from the purchaser.
Accordingly, when the damaging ox is sold, the sale is valid for purposes such as plowing, but it does not remove the injured party’s lien. If the injured party comes to collect his payment, he can take the ox. The owner may sell the animal, but he cannot sell it free of the injured party’s claim.
Rav Tachlifa of the West taught a braita before Rabbi Abbahu. The braita states that if a damaging ox was sold, the sale is not valid; if it was consecrated, the consecration is valid; and if it was slaughtered or given as a gift, those acts are effective.
The Gemara asks who sold the animal. If the owner of the damaging ox sold it, and the braita says that the sale is invalid, this appears to follow Rabbi Akiva, who says that the injured party is a partner in the ox and that the owner cannot sell it by himself. But the braita also says that if the owner consecrated it, the consecration is valid. That would seem to follow Rabbi Yishmael, who says that the ox belongs to the owner and that the injured party is only a creditor. How can the same braita follow both opinions?
The Gemara answers that the braita is really discussing the injured party selling the ox. According to Rabbi Yishmael, the ox belongs to the owner of the damaging ox, so the injured party has no right to sell it. That explains why the sale is invalid. According to Rabbi Akiva, the ox belongs partly to the injured party, so the injured party has no right to consecrate the entire ox. Yet the braita says that the consecration is valid.
The Gemara therefore gives another explanation: The braita is discussing the owner of the damaging ox, and everyone agrees that the sale is not fully effective. Even according to Rabbi Yishmael, although the ox belongs to the owner, the injured party still has a lien on it. Therefore, the owner cannot sell it in a way that eliminates that lien.
The sale is nevertheless effective for a limited purpose, such as plowing. The purchaser may use the ox, but the injured party can later take it as payment. Thus, “the sale is invalid” means that it is not a complete sale that removes the injured party’s claim; it does not mean that the purchaser cannot use the animal.
If the owner consecrated the ox, the consecration is valid according to Rabbi Yishmael because the animal belongs to him. According to Rabbi Akiva, however, the animal belongs partly to the injured party. Why should the owner’s consecration be valid?
The Gemara answers that Rabbi Abbahu instituted a ruling that the consecration is effective so that people will not say that a consecrated animal leaves consecration without redemption. Even though, according to Rabbi Akiva, the owner does not have full ownership and the consecration should not technically take effect, the consecration is treated as effective for this reason.
The braita also says that if the owner slaughtered the animal or gave it as a gift, the act is effective. If he gave it as a gift for purposes of plowing, this is understandable: The recipient can use the ox, but the injured party can still take it to collect the debt. But if the animal was slaughtered, there is no longer any plowing. It sounds as though the injured party can no longer collect from it. Why should the injured party not be able to collect the meat?
The Gemara brings a braita that says that the payment is collected from a live ox, but not from a dead ox. The Gemara asks how we know that the injured party can collect even after the damaging ox was slaughtered. The verse says that the damaging ox is sold, teaching that the rule applies whether the ox is alive or no longer alive.
The Gemara therefore asks why the braita says that giving the ox as a gift is effective, but does not say that the injured party can collect from the meat after the ox was slaughtered. The Gemara answers that the case concerns the loss in value caused by the slaughter. Since the ox was a tam, the injured party collects only from the body of the animal. If the live ox was worth enough to cover the required payment, but the meat is worth less after slaughter, the owner is not required to compensate the injured party for the decrease in value caused by the slaughter.
For example, the ox damaged another animal, and the value of the damaging ox was sufficient to cover half the damage. The owner then slaughtered it, and the value of the meat fell below the amount that the injured party was entitled to collect. The injured party can take the meat, but the owner does not have to pay the difference. The law of a tam is that payment comes from the body of the animal, and the owner is not liable for the reduction in value.
This teaches a broader principle. If a person’s property is subject to another person’s lien, and he damages that property so that its value decreases, he does not have to compensate the lienholder for the decrease. The property itself was designated for payment, but the owner is not treated as having damaged the other person’s property.
Rav Huna the son of Rav Yehoshua says that this teaches that one who damages property subject to another person’s lien is exempt. For example, if land is subject to a lien and the owner digs holes or trenches in it, even though the creditor was supposed to collect his debt from that land, the owner is exempt from paying for the decrease in its value.
The Gemara asks why this principle is necessary. It seems obvious. The Gemara answers that one might distinguish between the case of slaughtering an ox and the case of damaging land. In the case of the ox, the owner might say, “I caused you no monetary loss. I merely removed its life.” Perhaps the exemption is limited to that situation. In the case of land, however, where the owner actively digs holes and damages it, one might think that he must compensate the creditor.
The Gemara rejects that distinction. Even when a person directly damages land that is subject to his fellow’s lien, he is exempt. The same principle is found in the ruling of Rabbah concerning promissory notes. If a person burns his fellow’s documents, which the fellow needed in order to collect debts, the person who burned them is exempt, even though the documents were being used to collect money.
One might have thought that burning documents is different because the damage is indirect. The person burned only paper, and the loss of the ability to collect the debt is a consequential loss. Rav Huna teaches that even when the damage is direct, as when a person digs into land subject to a lien, he is exempt. The owner has damaged the lien, not the creditor’s property itself.
The Gemara now returns to the rule concerning creditors who take the damaging ox. The baalei chov, the creditors, came and seized the ox. The ruling is that they cannot take it, regardless of when their debt arose. It makes no difference whether the creditor’s claim preceded the damage or whether the ox damaged the other animal first and the debt arose afterward. The ox is designated for the injured party’s payment, and the creditors cannot take it.
The Gemara first asks: If the injured party’s lien arose first, the ruling is understandable. The injured party already had a claim on the ox, so the later creditor cannot take it. But what if the creditor’s claim arose first, before the ox caused the damage? The creditor came first, and the injured party’s lien arose afterward. Why should the creditor be required to return the ox after seizing it?
Perhaps this would prove that a later creditor who seizes property subject to an earlier lien must return it. That is a major dispute: When one creditor has an earlier lien and a later creditor seizes the property, does the later creditor retain what he seized, or must he return it? If this case is understood in that way, it would resolve that dispute.
The Gemara answers that the case is different. Normally, if a later creditor seizes property, he may retain it. Here, however, the injured party can say to the creditor, “If this ox had belonged to you and had caused the damage, would I not have been able to collect it from you? The Torah requires that payment for the damage come from the body of the damaging ox itself.”
The reason the injured party has the stronger claim is that his lien is attached specifically to the ox that caused the damage. The payment comes from the body of that ox. This is stronger than an ordinary debt, which can be collected from the borrower generally. Even if the creditor’s claim arose first, the injured party’s claim is attached directly to the damaging animal.
Thus, when it comes to ordinary creditors, the question may depend on when the creditor seized the property and on the general dispute concerning a later creditor who seizes property. In the case of damage caused by an ox, however, the injured party has a stronger lien. The payment is taken from the body of the animal that caused the damage, as though the animal itself had been designated as collateral.