Babylonian Talmud

Rodkinson 1918 — source 10, scan section 41

being under the control of the borrower, and he has returned him to the owner (and he gored once more), the owner must pay half and the borrower is free." Let us see: The Master said that in case he was borrowed with the understanding of 92 THE BABYLONIAN TALMUD. being non-vioious, and was found vicious, each pays one-half. Why shall the borrower pay anything ? Let him say to the owner, I have borrowed an ox, but not a lion. Said Rabh: The case was that it was known to the borrower that he was a goring ox. But still, he can say that he was understood to be non-vicious, and he turned out to be vicious, why shall I pay half ? Because the owner may answer him : What difference does it make to you in this case, if even he would be non- vicious? As soon as he has gored while being under your control you would have to pay half; the same is now, you pay only half. But still there is a difference, for a non-vicious ox pays from his body, while a vicious one from the best estates. The owner may say: Even in this case there is no difference to you, for you would have to pay for the other half of the ox to me in money. Now let us see (the second part of the Boraitha): " When he became vicious while under the control of the bor- rower, etc., the borrower is free; " hence we see that the change of control changes his status, and from the first part it is to be inferred that it does not change the status, as the whole damage is to be paid if he gored while under the control of the borrower. Said R. Johanan: Break* this Boraitha: the Tana who taught the first part did not teach the last one. Rabba, however, says: The Boraitha cannot be broken, as in the first part it is declared that change of control does not change the status, the same must be the case with the second part. The reason, however, for its decision is because the owner can say as regards the vicious- ness of the ox, which occurred while under the control of the borrower : The latter did not take care of him as he was not his, and therefore I do not consider him vicious at all. R. Papa, however, says : As in the last part of the Boraitha the control does change the status, so also is it in the first part, but the reason why there the whole amount is to be paid is because the ox always bears the name of his owner, even while under the control of the borrower, and therefore the change of control is not to be considered. " The ox of the stadium,'' etc. The Schoolmen propounded a question : Is the ox in question fit for the altar or not ? Rabh said he is, for he was goring by compulsion, and Samuel said he is not, for at any rate a transgression was committed with him. There is a Boraitha supporting Rabh, which states * This form of expression is often used in the Talmud. TRACT BABA KAMA (THE FIRST GATE). 93 plainly that the ox of a stadium is not guilty of death, and is fit for the altar. MISHNA V. : An ox that killed a man by goring him, if it was a vicious one, the atonement money is to be paid, but not when he was a non-vicious one. Both of them, however, must be killed. The same is the case when he gored a minor male or female. If he gored a male or a female slave he must pay thirty selas, without regard whether their value was one thousand zuz or only one dinar. GEMARA : If a non-vicious ox killing a man must be killed, how can there be found a vicious ox in regard to man ? Said Rabba : The case was that he was running after three men, two of whom escaped, and the court determined from the circum- stances that if he would have caught those two he would have killed them. R. Ashi, however, holds that such determination is of no value, but the case was that he gored two, injuring but not killing them at once, and then gored a third one to death, when the first two also died, and therefore he is considered vicious as to the third to pay the atonement money. R. Zbid, however, says: By " vicious one" is meant simply that he has killed three animals, and an ox that is considered vicious as to animals is considered so also as to human beings.* " Bo^/i of them y" etc. The rabbis taught: " From [Ex. xxi. 28] : ' Then shall the ox be surely stoned ' ; is it not self-evident that he became a carcass, and a carcass must not be eaten, why then does the verse add * and his flesh shall not be eaten ' ?" The verse comes to teach that if he was slaughtered after judg- ment was rendered the flesh must not be eaten. This is the prohibition of eating it, but whence is it deduced that no benefit must be derived from it ? Therefore it is written [ibid., ibid.]: " But the owner of the ox shall be quit," which means he shall be quit from any benefit. Such is the explanation of Simeon b. Zoma. But whence do we know that the words, " his flesh shall not be eaten," mean when he was slaughtered after judgment was rendered ; perhaps it means after he was stoned, and the words " shall not be eaten" are to be explained that he shall not derive any benefit, but if he was slaughtered the flesh may be eaten also ? The prohibition to eat it is inferred from * In the Gemara this last sentence is put as a question, and there are many answers to it which we deem of no importance to be translated. The law, however, prevails as we have translated in our text. 94 THE BABYLONIAN TALMUD. " surely stoned," and if the verse " his flesh shall not be eaten ** would mean to prohibit any benefit, it should have stated " shall not be derived any benefit," or " he shall not be eaten." Why the addition " his flesh" to indicate that if he was turned by slaughtering into food, as other meat, it is also prohibited ? The rabbis taught: It is written [ibid. 28]: " But the owner of the ox shall be quit." Said R. Eliezer: He is quit from pay- ing the half of atonement money. (One might say as a non- vicious pays half damage in case of goring an animal, the same is the case when he first gores a man.) Said R. Aqiba to him: Is this not self-evident ? The half payment is collected from his body, and here when the ox is stoned its owner may certainly say: " Bring it into court and collect from it." Said R. Eliezer to him: Do you consider me as common as not to know such a case ? I speak of an ox that is not guilty of death ; for instance, if he killed a man in the presence of one witness, or in the presence of his owner only (in which case the ox cannot be killed, but one might say that nevertheless the half atonement money must be paid). [You say in the presence of his owner, which means that the owner admits that it was so, then it would be equal to one who confesses of being liable to pay a fine, and