Bava Kamma - Daf 39
- If damages of an incompetent person’s mu’ad are collected from him, or his אפוטרופוס
The next Mishnah teaches that a חרש שוטה וקטן – a deaf-mute, an insane person, or a minor does not pay for their ox’s damages. בית דין מעמידין להן אפוטרופוס – Beis Din appoints an agent for them, ומעידין להן בפני אפוטרופוס – and [Beis Din] receives testimony about [their oxen] before the agent. Rava explains that although the Mishnah holds that they never pay for a tam, if the ox demonstrates violent tendencies, an אפוטרופוס is appointed to enable establishing it a mu’ad after three subsequent attacks, requiring payment thereafter. Rebbe Yochanan says: מעליית יתומין – Mu’ad damages are collected from the orphans’ choice properties. Rebbe Yose bar Chanina says: מעליית אפוטרופוס – from the agent’s choice property. Although Rebbe Yochanan generally holds debts are not collected from minor orphans, Rava explains an exception was made, because if the agents would have to pay, ממנעי ולא עבדי – they will refuse and not agree to be appointed. Rebbe Yose bar Chanina holds the agent pays (for his negligence) and is repaid by the orphans when they become adults.
- Appointing an אפוטרופוס to collect from an incompetent person’s tam
Although the Mishnah holds half-damages are not collected from an incompetent person’s tam, this is a machlokes Tannaim. In a Baraisa about an owner who became incompetent or traveled abroad, Sumchos said: הרי הוא בתמותו – it remains in its tam state, עד שיעידו בו בפני הבעלים – until they testify about it before the owners. But the Chachomim say we appoint an agent and accept testimony about the oxen in his presence. If the owner returns to competency, Sumchos says: חזר לתמותו – it returns to its tam state, but Rebbe Yose says: הרי הוא בחזקתו – it remains in its current [mu’ad] state. Since Sumchos makes clear in the second case that the ox did become a mu’ad, the Gemara reinterprets his statement in the first case: הרי הוא בתמימותו – it remains in its entirety, meaning דלא מחסרינן ליה – we do not reduce his ownership of it by collecting half-damages from its body. אלמא אין מעמידין אפוטרופוס לתם לגבות מגופו – We see he holds, that we do not appoint an agent for a tam to collect damages from its body, and the Chachomim hold that we do. In the second case, they argue if רשות משנה – the change in jurisdiction from the אפוטרופוס to the competent owner changes its mu’ad status.
- If צד תמות במקומה עומדת
In a Baraisa, Rebbe Yaakov said that the ox of an incompetent person “pays half-damages.” Since he explicitly mentions half-damages, there must be a novelty in the amount paid, and it cannot be an ordinary tam. Rava explains the case is a mu’ad, which he guarded with שמירה פחותה – an inferior guarding. Rebbe Yaakov holds like Rebbe Yehudah, who holds (on Daf 45): צד תמות במקומה עומדת – the tam portion of a mu’ad remains in its place, such that half of the full payment retains the halachos of tam. He further holds (like Rebbe Yehudah there) that although an inferior guarding does not exempt a tam from half-damages, it does exempt a mu’ad from full damages. Finally, he holds like the Chachomim above, that an agent is appointed to collect from an incompetent person’s tam. Therefore, although the agent guarded it enough not to pay full damages, the half-damages of the "צד תמות" are still collected.
Abaye explains that the case is where he did not guard the mu’ad at all, and Rebbe Yaakov holds (like Sumchos above) that the tam portion of an incompetent person is not collected. Therefore, he pays “half-damages,” i.e., the mu’ad half.
