Babylonian Talmud

Rodkinson 1918 — source 10, scan section 24

latter answered him : If I do so they will tell me that you should put up a fence on your ground. [If one must put up a fence upon his premises in order to prevent consumption of, or other- wise damaging, his fruit, how can there be a case of liability for damage by the ** tooth," for which the Scripture makes it plainly liable ? That may be in case she dug under the fence or the fence fell in in the night-time (if there was no opportunity of repairing it).] Announced R. Joseph, and according to others Rabba : It shall be known to all those who are ascending to Pales- tine and to all those who are descending to Babylon that if those goats that are kept for slaughter during the market days do damage, their owners shall be warned twice or three times. If they listen well and good, if not the goats are to be brought to the slaughter-house, even before the arrival of the market days, and the owners are to be paid their market value of that day. MISHNA IV. : What is considered a non-vicious and what is considered a vicious one ? A vicious ox is one that has been warned three days. A non^vicious one is one that abstains (from goring) for three days. Such is the dictum of R. Jehudah. R. Meir, however, said a vicious ox is one that had been warned thrice, and a non-vicious one is one that, when children pat him on the back, does not gore them. GEMARA: What is R. Jehudah's reason ? Said Abayi: It is written [Ex. xxi. 36]: "In time past" (in the original: *' Ml- tmol, Shilshom "). It could have been written ** tmol " (yesterday), and then would have counted only once, but it is written " J//-tmol " (since yesterday), therefore it signifies twice; when '* shilshom " is added it signifies thrice, and then follows, " and his owner hath not kept him in " [ibid.], which means that viciousness begins upon goring the fourth time (for the third time, however, only half is paid). Rabha, however, is not so particular about the addition of " mi " to " tmol," and there- fore this word signifies only once, and the word " shilshom " signifies twice, hence " and his owner," etc., means the tJiird time, when the ox becomes vicious, and he pays the whole damage. And what is the reason of R. Meir's theory ? This is ex- plained in the following Boraithi. R. Meir said: (Draw an a fortiori conclusion): If he gored at long intervals (only once a day), he is considered vicious on the third time; so much the more if he had gored thrice in one day he must be considered 48 THE BABYLONIAN TALMUD. vicious. They rejoined : There is no conclusion a fortiori to be drawn here, as there is a similarity in the case of a woman who has a running issue, who is unclean for seven days only when she notices the disease three days in succession once a day, but if she notices it three times or more in one day she has to wait only one day. He said again : (From this nothing can be inferred) as the verse made this case an exceptional one by the words '' And this,'' etc. [Lev. xv. 3], which signify that it is so only in this case, and no others can be compared to it, for we see that in this case the verse made it, in case of a man, depend upon the number of times of noticing of the issue, while in the case of a woman, it made it dependent upon the number of days. The rabbis taught : What ox is considered vicious ? One that has been warned for three days; and a non-vicious one is one that is patted by children and does not gore ; such is the dic- tum of R. Jose. R. Simeon, however, holds that a vicious ox is such as has been warned thrice (even in one day), and the statement as to the three days is only as to abstaining (that is, if after having been warned three times he abstains for three days from goring, then he is again considered non-vicious). Said R. Na'hman in the name of R. Ada bar Ahba: The Halakha prevails as stated by R. Jehudah in regard to a vicious ox, and according to R. Meir in regard to a non-vicious ox, for the reason that R. Jose agrees with them. Said Rabha to R. Na'hman: Let the master say that the Halakha prevails according to R. Meir in regard to a vicious ox, and according to R. Jehudah in regard to a non-vicious ox, for the reason that R. Simeon agrees with them in both. He rejoined : I concur with R. Jose, for he has always his valid reasons. The schoolmen propounded a question: The three days in question, are they as to make the ox vicious ; but the owner may be liable for a vicious one in one day; or are those three days also as to the owner ? In what case can there be a differ- ence ? If there appear three different sets of witnesses in one day (and testify as to thre^ gorings in three days), if those three days are as to the ox, then he becomes vicious ; but if they are as to the liability of the owner, then the latter can say all the three sets appear only now (and the Scripture requires that they shall appear in three days). Come and hear: " An ox does not become vicious until testi- mony is given in the presence of both his owner and the court. If in the presence of only one of them, he does not become TRACT BABA KAMA (THE FIRST GATE). 49 vicious until it is in the presence of both. If two witnesses testified as to the first goring, two as to the second goring, and two as to the third (each goring being at a different place, time, and man), we have then three sets of witnesses, but still all the three sets are considered one as to be proved in collusion. If one set is found collusive there is still the testimony of the other two sets, and neither the owner is liable to pay for a vicious one nor are his witnesses liable (to pay the other half for viciousness). The same is if also the second set proved collu- sive. If, however, all the three sets prove collusive, they are all considered as one set, and all of them are to pay the one-half for viciousness, and that is meant by the passage [Deut. xix. 19]: Then shall ye do unto him, as he had purposed to do unto his brother," etc. Now let us see. If the three days are as to the ox (but the owner may become liable if testimony be given to him thrice in one day), it is correct that the witnesses are liable only when all the three sets proved collusive (for it may be that the one who was injured brought all the witnesses to testify to the three gorings, and each set knew of the other and to what they were to testify, and therefore they cannot say that they in- tended to make him pay only one-half) ; but if you should say that the three days are as to the owner also, why should the first set of witnesses (if proved collusive) be liable? Let them say that they did not know that others would come in two or three days later to testify as to make him vicious. Said R. Ashi: