Babylonian Talmud

Rodkinson 1918 — source 10, scan section 44

is a grown-up person, but not a child, for it is written plainly ** man " (and a child is not called ** man "); in the case of an ox, in which there is no difference as to whether it is old or young (as the Scripture calls him ox from the very same day he was born, Lev. xxii. 27), so much the more that he shall be guilty for children as well as for grown persons. Why, then, is a verse needed ? Nay (as to all that was said above could be objected thus) : In the case of human beings there is a liability for the four certain things, which is not the case with an ox, and one might say, as in the case of an ox, there is no liability for the four things; so also should there be a distinction between chil- * The text reads " Im," which literally means "if"; Leeser, however, translates it " but," according to the sense of the verse. loo THE BABYLONIAN TALMUD. dren and grown persons ; hence the above passage. From this passage we deduce only as to a vicious ox; whence do we know that as to a non-vicious one ? This is common-sense: As there is a liability for a grown man or woman, and the same liability is for children, and as to grown persons no distinction is made between a vicious and non-vicious ox, the same is the case with children. This can also be inferred by a fortiori conclusion: Grown persons, who are responsible for their acts, if they were killed by an ox there is no distinction made between a vicious and non-vicious one; so much the less in case of children, w^ho are not responsible for their acts, that no distinction is to be made whether the ox was vicious or not. Is it not against the rule to draw an a fortiori conclusion from a rigorous one to a lenient one to make the lenient rigorous ? (It is deduced that no distinction is made between a vicious and non-vicious ox in regard to grown persons from the case of the children, and the verse, " If he gore a son," etc., speaks of a vicious ox; now you compare again the case of children to the case of grown persons, to say that as there is no distinction, so is none here, conse- quently you draw from the rigorous one, i.e., grown persons, which is based only upon common-sense, to the case of children, where the Scripture says plainly that the ox must be vicious, and consequently lenient, as it can be said that only a vicious and not a non-vicious is meant, to make a non-vicious also liable.) And still we can say that the case of children is more lenient, for children are free from observance of the Law, which is not the case with grown man; therefore it is written: " If he gore a son, or gore a daughter," the repetition of " gore" being superfluous, to teach us that there is no distinction between a vicious and non-vicious ox, between injured and killed, and in all cases it must be paid. MISHNA VI. : An ox that was rubbing against a wall where- by the wall fell upon a human being and killed him ; if the ox intended to kill an animal and killed a man, or a non-viable child and killed a viable one, he is free. GEMARA: Said Samuel: He is free from death, but he is liable to pay the atonement money. Rabh, however, says that he is free from both. But why shall atonement money be paid ? Is he then not non-vicious ? (Is it not said that he was rubbing against the wall, in which case he is surely non-vicious, at least in this case ?) As Rabha explained this {post, page 1 12), that it was vicious in this respect as to fall into pits, so also here that TRACT BABA KAMA (THE FIRST GATE). loi it was vicious in rubbing against the wall. But if so, then he must be put to death. It would be correct in the case of Rabha's explanation cited concerning a pit, because he noticed therein vegetables, and intending to eat of them he fell in, but in this case here what can be said ? He was rubbing against the wall to derive benefit. How do we know that ? From the fact that he continued rubbing even after the falling of the wall. But then is this the proximate cause ? Is it not the remote cause, as digging up gravel ? Said R. Mari, the son of R. Kahana: The case was that the wall was little by little removed by his rubbing until the very moment it fell, and therefore it was the proximate cause, but still there was no intention to kill. There is a Boraitha which is a support to Samuel and an ob- jection to Rabh, namely: " There are cases in which the ox is put to death and the owner pays atonement money, and there are other cases in which atonement money is paid, but the ox is not put to death, and still others in which the ox is put to death, but no atonement money is paid, and finally such cases in which there is no liability to either. How so ? If there are both viciousness and intention, both atonement money is paid and the ox is killed. If viciousness without intention is pres- ent, atonement money only; non-viciousness but intentional, the ox is put to death, but no atonement money. Non-vicious- ness without intention, no liability at all. But if, however, he has done damage unintentionally R. Jehudah holds him liable and R. Simeon holds him free." What is the reason of R. Jehudah's decision ? He compares it to atonement money: as the latter is to be paid if unintentional, so also in damages; and R. Simeon compares it to the killing of the ox : as the ox is not to be killed if it was unintentional, so also is the case with damages. ' * If the ox intended to kill an animal, ' ' etc. But how is the case if it intended to kill one man and killed another, is there a liability ? If so, then this Mishna will not be in accordance with R. Simeon of the following Boraitha, in which he says " that even if he intended to kill one man and killed another he is also free." And his reason is because it is written [Ex. xxi. 29]: " The ox shall be stoned, and its owner," etc. The killing of the ox is equal to the death of its owner: as the owner cannot be put to death unless he killed this man intentionally, so also the ox is not killed unless it killed this man intentionally. But whence do we deduce that it is so in case of murder ? Because I02 THE BABYLONIAN TALMUD. it is plainly written [Deut. xix. ii]: " And he lie in wait for hifUy and rise up against him," etc., which indicates that he must have the intention for the man he killed. MISHNA VII.: An ox belonging to a woman, to orphans, or their guardian, or an ownerless ox, or an ox belonging to the sanctuary, or the ox of a proselyte who died without heirs, all those (if they kill a man) are put to death. R. Jehudah, how- ever, holds that an ownerless ox, or that belonging to the sanc- tuary or to the proselyte in question are not put to death, for the reason that they have no owners.