ב׳ בתמוז ה׳תשע״ו (July 8, 2016)

Bava Kamma 38a-b: Jew vs. Gentile

How does Jewish law treat cases of torts (“a wrongful act, whether intentional or negligent, which causes an injury and can be remedied at civil law, usually through awarding damages”) between Jews and non-Jews?

Somewhat surprisingly, the Mishna (37b) rules that if the ox of a Jew gored the ox of a non-Jew, he will not have to pay, but if the ox of a non-Jew gored the ox of a Jew, we will make him pay full damages, whether the ox was a tam or a mu’ad (i.e. whether or not the ox had a history of violence).

The Gemara is disturbed by this unfair ruling, and it demands an explanation – after all either the passage that teaches these laws applies them to all cases, or else it applies them only to interactions between Jews (as is the simple understanding of the term re’ehu in Shemot 21:35-36). How can it be applied selectively in an unfair manner!?

In response to this question, the Gemara brings statements from a number of Talmudic sages who agree that because the non-Jewish world did not follow the seven Noachide commandments, Jewish law “permitted their wealth.” Tosafot point out this certainly does not mean that according to halakha Jews are allowed to steal from non-Jews, rather in cases like this one, we do not make the Jewish owner of a damaging ox pay restitution. The Me’iri reiterates a position that he states in a number of places, that this ruling applies only to non-Jews who do not behave in a civilized manner, but when Jews live in places that have established courts and civil society, such a rule would not apply. Furthermore, other rishonim offered additional reasons to explain the reasoning behind this halakha. The Rambam, for example writes that this ruling stems from the fact that non-Jewish law did not require any payment for such damage, so we accept that and do not require Jews to pay; since non-Jews do not guard their animals properly, we punish them by making them pay full damages.

The Gemara concludes that when the Roman government sent scholars to and demanded that they be taught the Torah, upon completing their course of study those representatives stated that the entire Torah is true, aside from this halakha that forces the non-Jew to pay in full but frees the Jew entirely. Nevertheless, they promised that they would not share this ruling with the government.

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