Bava Kamma - Daf 34
- If the מזיק or ניזק changed value after the damage
A Baraisa taught that if an ox was damaged, and then increased in value until it exceeded its original value (and would have been worth even more if not for the damage), נותן כשעת הנזק – the mazik pays according to the loss assessed at the time of damage. If it depreciated further after the damage, כשעת העמדה בדין – he pays according to the time of standing in judgement and is responsible for the additional loss. If the ox that damaged increased in value after damaging, the ניזק does not gain from the appreciation. If it depreciates in value, the ניזק shares in the loss. Since this final case shows that the Baraisa follows Rebbe Akiva’s opinion, that the ניזק immediately takes partial ownership of the damaging ox (and his share depreciated), the Gemara must explain that he does not gain from the appreciation in the previous case only כשפיטמו – where [the damager] fattened it through his own expense.
Rav Ashi explains that the מזיק is responsible for the injured ox’s later deterioration, דכחש מחמת מכה – where it deteriorated because of the original blow, because the ניזק can say: קרנא דתורך קבירא ביה – your ox’s horn is buried in my ox.
- Machlokes about the Torah’s case of a damaging tam (and machlokes about שבח נבילה)
The next Mishnah says that where an ox worth two hundred zuz killed another worth the same, and the carcass is worthless, Rebbe Meir says: על זה נאמר – regarding this case the Torah states: "ומכרו את השור החי וחצו את כספו" – they shall sell the live ox and divide its money. Since the proceeds equal the full damage, dividing them gives the victim half-damages. Rebbe Yehudah says that although the halachah is true, it is not the case of the passuk, which also states: "וגם את המת יחצון" – and they shall also divide the dead one. Rather, the passuk’s case is where the carcass is worth fifty zuz, and the damage is one hundred-fifty zuz. Both parties “take” half the live ox and half the dead ox, meaning each receives one hundred-twenty-five zuz, and suffers a loss of seventy-five zuz (half the total damage).
The Gemara asks for the practical difference between the Tannaim, and eventually Rebbe Yochanan explains: שבח נבילה איכא בינייהו – the difference between them concerns appreciation of the carcass. Rebbe Meir, who says the מזיק has no share in the carcass, holds the benefit belongs only to the ניזק, and Rebbe Yehudah, who holds the מזיק has a share in the carcass, holds they share the benefit.
- כל המקלקלין פטורין "חוץ מחבל ומבעיר"
Rebbe Abahu taught a Baraisa before Rebbe Yochanan: כל המקלקלין פטורין– All who do destructive acts on Shabbos are exempt from punishment, because only constructive acts are liable, חוץ מחובל ומבעיר – except for one who wounds and one who burns, which are liable even for destructive acts. Rashi explains, quoting the Gemara in Shabbos, that the Torah’s permit of milah on Shabbos, and its prohibition of melting metal for execution by “burning,” imply that these two melachos are normally liable even where they are destructive. Rebbe Yochanan told him: פוק תני לברא – Go out and teach this Baraisa outside the Beis Medrash, for it is inaccurate! This ruling, that wounding and burning are liable even when destructive, was not said by Tannaim. He added that if such a statement does exist, it requires interpretation: חובל בצריך לכלבו – one who wounds would apply where he needs the blood for his dog, מבעיר בצריך לאפרו – and one who burns would apply where he needs its ashes. Although the act is destructive, and the total damage is greater than the benefit, his purposeful intent is sufficient (for these melachos) for liability.
