Bava Kamma - Daf 40
- If כופרא כפרה, machlokes whose value is paid
A Baraisa teaches that where an אפוטרופוס was appointed over orphans’ oxen, כופר is not paid (for a mu’ad killing someone). This Tanna holds: כופרא כפרה – kofer payment is an atonement, and orphans (who are minors) need no atonement. Rav Chisda quotes a Baraisa to identify this Tanna: the passuk says "ונתן פדיון נפשו" – and he shall give a ransom for his life. The Tanna Kamma says it means דמי ניזק – the value of the damaged party (i.e., the one killed). Rebbe Yishmael the son of Rebbe Yochanan ben Berokah says it means דמי מזיק – the value of the damager (i.e., the ox’s owner). Rav Chisda assumes that the Tanna Kamma holds kofer is a monetary payment, so he pays the value of the ניזק who was killed, and Rebbe Yishmael holds it is an atonement, so the owner pays his own value. Rav Pappa says that both opinions can agree that kofer is an atonement, but disagree whose value is paid to obtain that atonement, based on derashos.
- A borrowed ox which is discovered a mu’ad
It was taught in a Baraisa: שאלו בחזקת תם – If one borrowed [an ox] with the assumption it was a tam, ונמצא מועד – and it was found to be a mu’ad, בעלים משלמין חצי נזק ושואל משלם חצי נזק – the owner pays half-damages, and the borrower pays half-damages. The borrower pays half because he accepted it as a tam, and the second half is the owner’s responsibility for not informing the borrower.
The Gemara asks that the borrower could claim "תורא שאילי אריא לא שאילי" – I borrowed an ox, not “a lion” (i.e., an animal prone to damage), and should be exempt, and answers the case is where the borrower discerned its violent nature. Although if it had been a tam (like the borrower thought), only half-damages would be paid, and only from the animal’s body, the borrower would have had to replace that loss of the owner, and here, too, only pays half. Although the borrower can claim he would have hidden the ox in a swamp to avoid payment (if it had been a tam), the case is where Beis Din seized it immediately.
- רשות משנה regarding a borrowed animal
In the Baraisa above, the animal remained a mu’ad when it was borrowed, indicating the Tanna holds רשות אינה משנה – the change in jurisdiction does not change the ox’s status. The Gemara asks that the Baraisa’s second case indicates the opposite: הועד בבית שואל והחזירו לבעלים – If it became a mu’ad in the borrower’s house, and he returned it to the owner, בעלים משלמין חצי נזק ושואל פטור מכלום – the owner pays half-damages, and the borrower is completely exempt. This proves the animal reverts to tam status when it changes to the owner’s jurisdiction!? Rebbe Yochanan says they are incompatible and reflect two different opinions. Rabbah says the Baraisa holds a change of jurisdiction does not change its status. Still, it reverts to tam status when it is returned to the owner because he can say: לאו כל כמינך דמייעדת ליה לתוראי – it is not within your power to make my ox a mu’ad. Rav Pappa says the Baraisa holds the change of jurisdiction does change its mu’ad status, but in the first case, where someone borrowed a mu’ad, it remains a mu’ad: דכל מקום שהולך שם בעליו עליו – because wherever it goes, its owner’s name is upon it (it is still considered his jurisdiction).
