אֶלָּא אִי אָמְרַתְּ לְיַיעוּדֵי גַּבְרָא, לֵימְרוּ הָנָךְ קַמָּאֵי: אֲנַן מִי הֲוָה יָדְעִינַן דְּבָתַר תְּלָתָא יוֹמֵי אָתוּ הָנֵי וּמְיַיעֲדִי לֵיהּ?

But if you say that the witnesses came to forewarn the man, to caution him to safeguard his animal from causing harm, then they must have come on three separate days. And if so, let these first witnesses say: Did we know that after three days these other witnesses were going to come to testify about the animal? Therefore, it must be that the case in the baraita is one where the three groups of witnesses all came on the same day, and if that is so, the purpose of the testimony must be to render the ox forewarned.

אֲמַר רַב אַשִׁי: אָמְרִיתָהּ לִשְׁמַעֲתָא קַמֵּיהּ דְּרַב כָּהֲנָא, וַאֲמַר לִי: וּלְיַיעוּדֵי תּוֹרָא מִי נִיחָא? וְלֵימְרוּ הָנָךְ בַּתְרָאֵי: אֲנַן מְנָא יָדְעִינַן דְּכָל דְּקָאֵי בֵּי דִּינָא, לְאַסְהוּדֵי בְּתוֹרָא קָאָתוּ? אֲנַן לְחַיּוּבֵי גַּבְרָא פַּלְגָּא נִזְקָא אָתֵינַן!

Rav Ashi said: I recited this halakha before Rav Kahana and he replied to me in response to this proof: And does it work out well to say that they are coming to render the ox forewarned? Even in a case where all of the witnesses arrive in court on the same day, let these last witnesses say: From where were we to know that all those standing in court came to testify about the ox? We came to make this person liable to pay for half the cost of the damage his animal allegedly caused, but we are not responsible for the attempt to make him pay the full cost of the damage for the third incident.

דְּקָמְרַמְּזִי רְמוּזֵי. רַב אַשִׁי אֲמַר: כְּשֶׁבָּאוּ רְצוּפִים.

The Gemara answers: It must be that the case concerns a situation where the different groups of witnesses were observed signaling to each other, and therefore it is clear that they were aware of each other’s testimony and that they came to the court for this purpose. Rav Ashi said: The case is one where they all came in succession, one following the other, and therefore it is clear that the latter witnesses are aware of the former.

רָבִינָא אֲמַר: בְּמַכִּירִין בַּעַל הַשּׁוֹר וְאֵין מַכִּירִין אֶת הַשּׁוֹר.

Ravina said: In this case the witnesses said that they were acquainted with the owner of the goring ox but they were not familiar with the ox itself. This indicates that they were coming to court to render the ox forewarned, as the witnesses are not able to identify the goring ox and they would not be able to hold its owner liable to pay for half the cost of the damage, as this payment is paid only from the proceeds of the sale of the animal. Therefore, the only purpose of their testimony would be to hold the owner liable to pay the full cost of the damage for the third incident, as this payment is made from the owner’s superior-quality land.

אֶלָּא הֵיכִי מְיַיעֲדִי לֵיהּ? דְּאָמְרִי: תּוֹרָא נַגְחָנָא אִית לָךְ בְּבַקְרָךְ, אִבָּעֵי לָךְ לִנְטוּרֵי לְכוּלֵּיהּ בַּקְרָא.

The Gemara asks: But if they were not familiar with the ox, how could they render it forewarned? The Gemara answers: They said to the animal’s owner: You have a goring ox among your cattle, and therefore you need to safeguard all of the cattle.

אִבַּעֲיָא לְהוּ: הַמְּשַׁסֶּה כַּלְבּוֹ שֶׁל חֲבֵירוֹ בַּחֲבֵירוֹ, מַהוּ? מְשַׁסֶּה וַדַּאי פָּטוּר, בַּעַל כֶּלֶב מַאי? מִי אָמְרִינַן מָצֵי אֲמַר לֵיהּ: אֲנָא מַאי עָבֵידְנָא לֵיהּ. אוֹ דִּלְמָא אָמְרִינַן לֵיהּ: כֵּיוָן דְּיָדְעַתְּ בְּכַלְבָּךְ דִּמְשַׁסִּי לֵיהּ וּמִשְׁתַּסֵּי, לָא אִבָּעֵי לָךְ לְאַשְׁהוּיֵיהּ?

§ A dilemma was raised before the Sages: In the case of one who incites another’s dog against another, i.e., a third person, and he is injured, what is the halakha ? The one who incited the animal against him is certainly exempt, since he did not cause the damage directly and neither did his property; but what is the halakha with regard to the owner of the dog? The Gemara explains the different sides of the question: Do we say that the owner of the dog can say to the injured party: What did I do to the dog? Or perhaps we say to him: Since you were aware that if others incite your dog it is prone to being affected by the incitement and attacking, you ought not to have kept it in your possession. Since you did, you are liable for the damage and the injuries it causes.

אֲמַר רַבִּי זֵירָא, תָּא שְׁמַע: וְתָם – שֶׁיְּהוּ הַתִּינוֹקוֹת מְמַשְׁמְשִׁין בּוֹ וְאֵינוֹ נוֹגֵחַ; הָא נוֹגֵח – חַיָּיב. אֲמַר אַבַּיֵי: מִי קָתָנֵי נָגַח חַיָּיב? דִּלְמָא הָא נָגַח לָא הָוֵי תָּם, וּבְהַהִיא נְגִיחָה לָא מִחַיַּיב!

Rabbi Zeira said: Come and hear a solution from the baraita : And an ox reverts to its former innocuous status if children pet it and nevertheless it does not gore. It can be inferred from this that if it gores when the children pet it, the owner would be liable to pay for the damage. An ox that gores because children pet it can be likened to one that gores because it was incited to do so, and nevertheless the mishna holds the owner liable. Abaye said: Is it taught in the baraita that if it gored the owner is liable? Perhaps that is not what the baraita means. It merely means that if it gored it does not revert to innocuous status; but the owner is not liable for any of the damage caused by that goring because the children incited the animal to do so, and therefore nothing can be conclusively demonstrated from the baraita .

תָּא שְׁמַע: שִׁיסָּה בּוֹ אֶת הַכֶּלֶב, שִׁיסָּה בּוֹ נָחָשׁ – פָּטוּר; מַאי לָאו פָּטוּר מְשַׁסֶּה, וְחַיָּיב בַּעַל כֶּלֶב? לָא, אֵימָא: פָּטוּר אַף מְשַׁסֶּה.

The Gemara attempts to prove this point from another source: Come and hear a solution from a mishna ( Sanhedrin 76b): If one incited a dog against another person, or incited a snake against another person, he is exempt. What, is it not that the one who incited the dog against him is exempt, but the owner of the dog is liable? The Gemara rejects this: No, say that even the one who incited the animal against him is exempt, as well as the owner.

אֲמַר רָבָא: אִם תִּמְצֵי לוֹמַר הַמְּשַׁסֶּה כַּלְבּוֹ שֶׁל חֲבֵירוֹ בַּחֲבֵירוֹ חַיָּיב, שִׁיסָּהוּ הוּא בְּעַצְמוֹ – פָּטוּר, מַאי טַעֲמָא? כָּל הַמְשַׁנֶּה וּבָא אַחֵר וְשִׁינָּה בּוֹ – פָּטוּר.

Rava said: Even if you say that one who incites the dog of another against yet another person liable, nevertheless if he incited the dog against himself, i.e., the dog bit the one who was inciting it to attack, he is exempt. What is the reason for this? Due to the principle that with regard to anyone who deviates from normative behavior in his actions, if another came along afterward and deviates from the norm with regard to the action the first has done and thereby causes damage to him, the one who causes the damage is exempt from liability. Since this individual deviated from the normative behavior and incited the dog against himself, the owner of the dog is not responsible for any damage the dog causes to him as a result, although generally speaking any time a dog bites it is in and of itself a deviation from its typical behavior and something for which its owner would normally be held liable.

אֲמַר לֵיהּ רַב פַּפָּא לְרָבָא: אִיתְּמַר מִשְּׁמֵיהּ דְּרֵישׁ לָקִישׁ כְּוָותִיךְ, דְּאָמַר רֵישׁ לָקִישׁ: שְׁתֵּי פָרוֹת בִּרְשׁוּת הָרַבִּים, אַחַת רְבוּצָה וְאַחַת מְהַלֶּכֶת, וּבָעֲטָה מְהַלֶּכֶת בָּרְבוּצָה – פְּטוּרָה, רְבוּצָה בַּמְּהַלֶּכֶת – חַיֶּיבֶת.

Rav Pappa said to Rava: It was stated in the name of Reish Lakish in accordance with your opinion, that if anyone deviates from normative behavior in his actions, if another came along afterward and deviates from the norm with regard to the action the first has done and thereby causes damage to him, the one who causes the damage is exempt from liability. As Reish Lakish says: If there were two cows in the public domain, one prone in the street and the other one walking, if the walking cow kicked the prone cow, exempt from liability. But if the prone cow kicked the walking cow, its owner is liable. The rationale for this is that since it is typical behavior for cows to walk in the public domain and the prone cow deviated from this behavior, even if the walking cow also acted atypically and kicked the prone cow, the owner is exempt from liability.

אֲמַר לֵיהּ: אֲנָא בְּהַהִיא חַיּוּבֵי מְחַיַּיבְנָא, דְּאָמְרִינַן לֵיהּ: כִּי אִית לָךְ רְשׁוּתָא לְסַגּוּיֵי עָלַי, לְבַעוּטֵי בִּי לֵית לָךְ רְשׁוּתָא.

Rava said back to Rav Pappa: That is not in accordance with my opinion, as I would have held the owner of the walking cow liable in that case, because in my opinion we say to him on behalf of the prone cow: It is true that you have the right to tread on me in the public domain but you do not have the right to kick me, and therefore Rava’s and Reish Lakish’s opinions are not exactly the same.

מתני׳ שׁוֹר הַמַּזִּיק בִּרְשׁוּת הַנִּיזָּק, כֵּיצַד? נָגַח, נָגַף, נָשַׁךְ, רָבַץ, בָּעַט, בִּרְשׁוּת הָרַבִּים – מְשַׁלֵּם חֲצִי נֵזֶק, בִּרְשׁוּת הַנִּיזָּק – רַבִּי טַרְפוֹן אוֹמֵר: נֵזֶק שָׁלֵם, וַחֲכָמִים אוֹמְרִים: חֲצִי נֵזֶק.

And what is the case of the ox that causes damage while on the property of the injured party, gored, pushed, bit, squatted upon, or kicked another animal in the public domain, the owner is liable to pay half the cost of the damage if the ox was innocuous, but if it acted while on the property of the injured party, Rabbi Tarfon says: He must pay the full cost of the damage, and the Rabbis say: He must pay half the cost of the damage, as in any other case classified as Goring.

אָמַר לָהֶם רַבִּי טַרְפוֹן: וּמַה בְּמָקוֹם שֶׁהֵקֵל עַל הַשֵּׁן וְעַל הָרֶגֶל בִּרְשׁוּת הָרַבִּים שֶׁהוּא פָּטוּר, הֶחְמִיר עֲלֵיהֶן בִּרְשׁוּת הַנִּיזָּק לְשַׁלֵּם נֵזֶק שָׁלֵם, מָקוֹם שֶׁהֶחְמִיר עַל הַקֶּרֶן בִּרְשׁוּת הָרַבִּים לְשַׁלֵּם חֲצִי נֵזֶק, אֵינוֹ דִּין שֶׁנַּחְמִיר עָלָיו בִּרְשׁוּת הַנִּיזָּק לְשַׁלֵּם נֵזֶק שָׁלֵם?

Rabbi Tarfon said to the Rabbis: If in a place where the Torah was lenient with regard to damage classified as Eating and with regard to Trampling, specifically in the public domain, as the owner is exempt from liability, nevertheless the Torah was strict with regard to these forms of damage if they occurred on the property of the injured party, requiring him to pay the full cost of the damage, then in a place where the Torah was strict with regard to cases of damage classified as Goring, specifically in the public domain, requiring the owner liable to pay for half the cost of the damage, is it not right that we should be strict with regard to this form of damage if it occurs on the property of the injured party to likewise require the owner of the animal to pay the full cost of the damage?

אָמְרוּ לוֹ: דַּיּוֹ לַבָּא מִן הַדִּין לִהְיוֹת כַּנִּדּוֹן, מַה בִּרְשׁוּת הָרַבִּים – חֲצִי נֵזֶק, אַף בִּרְשׁוּת הַנִּיזָּק – חֲצִי נֵזֶק.

The Rabbis said to him: Although there is an a fortiori inference being applied here, still it is sufficient for the conclusion that emerges from an a fortiori inference to be like its source, meaning that the halakha cannot be stricter with the inference than it is with the case that serves as the source of the inference. Therefore, just as one is liable to pay half the cost of the damage classified as Goring in the public domain, so too, for damage classified as Goring on the property of the injured party he is liable to pay only half the cost of the damage.

אָמַר לָהֶם: אַף אֲנִי

Rabbi Tarfon said to them: If that is your opinion, then I as well