Bava Kamma - Daf 43
- An ox is not killed for unintentional killing, machlokes about unintentional damages
The next Mishnah states: שור שהיה מתחכך בכותל ונפל על האדם – If an ox was rubbing itself against a wall, and it collapsed onto a person and killed him, or if an ox intended to kill an animal, a Gentile, or nonviable baby and instead killed a viable Jew, פטור – it is exempt. Rav and Shmuel disagree if the exemption is only from the animal’s being stoned, or also from the owner’s kofer obligation (which was disputed by others on Daf 43). A Baraisa proves that kofer is paid. The Baraisa continues: והנזקין שלא בכוונה – and regarding unintentional damages inflicted by an ox on a person (where he was injured but not killed), Rebbe Yehudah says he is liable to pay, and Rebbe Shimon holds he is not. Rebbe Yehudah reasons that just as one pays kofer for his ox’s unintentional killing, he also pays damages for its unintentional injuries. He holds: דנין תשלומין מתשלומין – we derive payments (damages) from payments (kofer). Rebbe Shimon reasons that just as his ox is not killed for its unintentional killing, the owner is also exempt from paying damages for such injuries. He holds: דנין חיוביה דשור מחיוביה דשור – we derive the ox’s obligation (damages) from the ox’s obligation (death).
- נתכוין להרוג את זה והרג את זה
The Mishnah taught that an ox which intended to kill an animal and killed a person is exempt from being stoned. This implies that if it had intended to kill a Jew,, and killed a different Jew, it is stoned. The Mishnah disagrees with Rebbe Shimon, who said: אפילו נתכוין להרוג את זה והרג את זה פטור – even if it intended to kill this Jew and instead killed another, it is exempt. Because the Torah said: השור יסקל וגם בעליו יומת – the ox shall be stoned, and the owner shall also die, this juxtaposition teaches: כמיתת בעלים כך מיתת השור – as the laws are regarding the owner’s death, so are the laws regarding the ox’s death. Just as Rebbe Shimon holds the owner would not be killed for murdering a different person than he intended, an ox is also exempt in this case. Rebbe Shimon’s source to exempt someone who kills the wrong victim is from the passuk "וארב לו וקם עליו" – and he ambushes him and rises against him, teaching: עד שיתכוין לו – he is not liable unless he intends to kill him.
- If an ownerless ox is killed
The next Mishnah lists six cases of oxen which are killed for killing a Jew: an ox belonging to a woman, or to orphans, or under the care of an אפוטרופוס, an ox of the wild (which is ownerless), an ox of hekdesh, and an ox of a convert who died without heirs (which is ownerless). Rebbe Yehudah says about the last three cases: פטורין מן המיתה – they are exempt from death, לפי שאין להם בעלים – because they do not have owners. In a Baraisa, the Tanna Kamma includes these six cases from the six superfluous words “ox” in this passage. Rav Huna says that Rebbe Yehudah’s exempted the ox אפילו נגח ולבסוף הקדיש – even where it gored and he subsequently was makdish it, נגח ולבסוף הפקיר – or it gored and he subsequently was mafkir it. This can be proven from the Mishnah’s mentioning two cases of ownerless oxen (an ox of the wild, and of a convert who dies), the second of which is to include this case. This is supported by a Baraisa, which derives from a derashah that the ox is not killed עד שתהא מיתה והעמדה בדין וגמר דין שוין כאחד – unless the victim’s death, the standing in court, and the verdict are similar, i.e., the ox is owned throughout.
