Babylonian Talmud

Rodkinson 1918 — source 10, scan section 39

ox be liable when he gores an ox of the sanctuary (the sanctuary cannot be called another man) ? And if he interpreted the word not literally, why should an ox of the sanctuary be free when he gored a commoner's ox ? And if one might say that although he interpreted the word literally, he nevertheless makes the * Here foHow several similar questions, all remaining unanswered, and they are of no importance. f For the first time in our translation we omit here a statement of the Mishna regarding the goring of an ox belonging to an idolater, for it seems to us that it was inserted here not by the editors of the Mishna ; the evidence for this we have set forth in a long article in Hebrew in the monthly " Ner Hamarabi." We will probably ex- plain this to our English readers in an appendix to the " third gate " of this section. TRACT BABA KAMA (THE FIRST GATE). 87 commoner pay on the ground of the following a fortiori conclu- sion : When one commoner's ox gores a similar ox he must pay ; so much the more if a commoner's ox gores one belonging to the sanctuary, and then his statement that even if he was non- vicious the whole damage must be paid would not be correct, as there is a rule that it is sufficient that an inference should be equal to the law from which it is derived (and under no circum- stances more rigorous) ; why then must he pay the whole damage if it is based only on this a fortiori conclusion ? Said Resh Lakish: In reality in all cases the whole damage must be paid; the verse, however, making an exception of goring and stating that half only is to be paid, added at the same time the word inj^*1 (which means, literally, " his comrade"), with the inten- tion to exclude all those cases where it cannot be considered of his comrade, e.g.^ of the sanctuary; and the correctness of this statement may be proved from the fact that when the verse speaks of a vicious ox the above word " Re-ehu " is not men- tioned. When the daughter of R. Samuel bar Jehudah died, one of the Rabbis said to Ula : Let us go and console him. He said to them : What have I to do with the consolation of a Babylon- ian, for it may turn into a blasphemy, as they are in the habit of saying in such cases, " What can be done ? " (against the will of God), which means that if something could be done against His will they would, and this is certainly a blasphemy. He then went alone, and his consolation was as follows : It is writ- ten [Deut. ii. 9] : " And the Lord said unto me, Do not attack the Moabites, nor contend with them in battle." Could it, then, ever enter Moses' mind to engage in war without the con- sent of the Lord ? But Moses drew an a fortiori conclusion for himself, thus: If of the Midianites who only came to help the Moabites the Scripture reads [Numb. xxv. 17]: "Attack the Midianites, and smite them," the Moabites themselves so much the more? The Holy One, blessed be He, then said: "Thy conclusion was so because thou couldst not imagine what I bear in my mind. Two good doves I have to bring forth from them ; namely, Ruth the Moabite and Naomi the Amonite." Now is there not an a fortiori conclusion to be drawn ? If for two good doves the Holy One, blessed be He, has saved two great nations and has not destroyed them, so much the more would He have saved the life of the master's daughter if she would be righteous and something good would have to come forth from her. SS THE BABYLONIAN TALMUD. MISHNA IV.: An ox of a sound person that gored an ox belonging to a deaf mute, idiot, or minor, there is a liability. If the reverse was the case, there is none. An ox of the three last-named persons that gores, the court should appoint a guar- dian and the witnesses should testify in the presence of the guardian. If in the meantime the deaf mute is cured, the idiot becomes of sound mind, or the minor becomes of age, the ox is restored to his non-viciousness. Such is the dictum of R. Meir. R. Jose, however, says that he remains in the same position. An ox of the stadium {i.e., the place where oxen are trained for fighting) is not liable to be killed when killing even a human being, for it is written: " If an ox gore,'* which means of his own inclination, but not when he is trained to do so. GEMARA: Does, then, the Mishna not contradict itself? First it states that if an ox of the three named persons that gores an ox of a sound person, there is no liability, from which it may be inferred that no guardian is to be appointed when the ox is non-vicious to enable the plaintiffs to collect from his body, and immediately after it states that an ox of those three persons that gores, the court should appoint a guardian and witnesses should testify before him, from which it may be inferred that a guardian is appointed for the purpose of enabling to collect from his body ? Says Rabha: This is to be interpreted thus: If they were known to be goring oxen the court appoints a guardian, and the witnesses are examined in the presence of the guardian and the ox is declared vicious, so that if he subsequently gores again the damage is collected from the best estates. From whose best estates? R. Johanan said: From those of the orphans.* R. Jose b. Hanina said: From those of the guardian. Did R. Johanan, indeed, say so ? Did not R. Jehudah say in the name of R. Assi that the estate of orphans must not be touched (until the orphans reach majority, even when there is a written obligation of their deceased father to be paid), unless interest would grow on the obligation [e.g., when the deceased borrowed money from a Gentile). R. Johanan, however, says also when the widow's marriage contract is to be paid, because she must be paid out of the estate a sum of money for her sub- sistence so long as her marriage contract remains uncollected. Hence we see that only for the purpose of supporting the widow, or where there is interest growing, R. Johanan permits to collect * I,e,. those three named in the Mishna, TRACT BABA KAMA (THE FIRST GATE). 89 from orphans' estates, but not otherwise. Reverse the state- ment in our case, that R. Johanan holds from the estate of the guardian, and R. Jose b. Hanina said from those of the orphans. Said Rabha: Because there is a contradiction between the state- ments in the name of R. Johanan, you make R. Jose err. R. Jose b. Hanina was a judge, and he always dived to the bottom of the law. Therefore the statement in our case is not to be reversed, but the reason why R. Johanan states in our case that it shall be collected from the estates of the orphans, is because there is no other way, as if it should be collected from the estates of the guardian nobody would consent to become one. And the reason for Jose b. Hanina's statement that it shall be col-