ב׳ בתמוז ה׳תשע״ו (July 8, 2016)

Bava Kamma 39a-b: The Ox of a Deaf-mute, an Imbecile or a Minor

In certain situations where a person cannot fend for himself, Jewish law appoints an apotropus – a legal guardian – who accepts the responsibility of looking out for the person’s interests. The Mishna on our daf discusses the case of an ox that belonged to a heresh, shotah ve-katan – a deaf-mute, an imbecile or a child – all of whom are perceived as unable to take care of their own affairs. According to Rava’s explanation of the Mishna, owners like those will not be held responsible for damage done by the ox, but if the ox is found to be violent, then an apotropus will be appointed by the courts so that witnesses can come forward and testify about the ox so that it will be considered a mu’ad – a violent animal – whose owners will be made to pay for damage that it causes.

It appears, however, that until it becomes clear that there is a problem with the animal, the court will not appoint an apotropus. Many reasons are offered for this by the rishonim.

Rashi brings a number of explanations. First he suggests that the half-payment made by a shor tam (an animal with no history of violence) is considered a kenass – a penalty – and not true restitution, and we have no interest in punishing these types of people by making them pay kenass. For a variety of reasons Rashi rejects that explanation and explains that the problem stems from the fact that payment from a shor tam is mi-gufo – it is limited to the value of the animal itself. Since the courts do not allow collection from movable objects belonging to orphans, they cannot collect from a shor tam.

The Ra’avad offers a different approach, saying that the orphans need the ox for work in the field and exacting payment from it would be considered a hefsed merubeh – a great loss – which we will not be willing to inflict on them. According to Tosafot, the reason is lodged in the very definition of the rules of a shor tam. A shor tam pays only half damages because the Torah was lenient with someone who had no way of knowing that his animal might attack another. In the case of orphans – or others that cannot watch their property properly – we extend that leniency and ensure that they will not be forced to pay.

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