אִם תָּם הֲוָה מוֹדֵינָא וּמִפַּטְרִינָא!

If the ox was innocuous, I would have admitted my liability and would thereby have been exempt. A fine is imposed only as result of the testimony of two witnesses; if the offender admits his liability, no fine is imposed. Therefore, since the liability to pay half the cost of the damage for the act of an innocuous ox is a fine, the borrower could have rendered himself exempt from liability through admission.

וַאֲפִילּוּ לְמַאן דְּאָמַר פַּלְגָּא נִזְקָא מָמוֹנָא, נֵימָא לֵיהּ: אִי תָּם הוּא, הֲוָה מַעֲרִיקְנָא לֵיהּ לְאַגְמָא!

And even according to the one who says that payment of half the damage is considered monetary restitution, not a fine, and therefore his admission would not have rendered himself exempt from liability, let the borrower say to him: If the ox was innocuous, I would have smuggled it out to the marsh [agma] so that the injured party would not find it in my possession. He would then be unable to collect damages from me, since he can collect payment only from the proceeds of the sale of the ox. By contrast, compensation for damage caused by a forewarned ox can be collected from all of the owner’s property, and the borrower had no way of render-ing himself exempt from liability. Therefore, it is unclear why the borrower is liable to pay half the cost of the damage.

אֶלָּא, הָכָא בְּמַאי עָסְקִינַן – כְּגוֹן דְּאַקְדֵּים בֵּי דִּינָא וְתַפְסֵיהּ.

The Gemara answers: Rather, here we are dealing with a case where the court seized the ox first, before the borrower had the chance to admit his liability or to smuggle the ox to the marsh. Therefore, the borrower cannot claim that he would have been able to render himself exempt from liability.

אִי הָכִי, בְּעָלִים אַמַּאי מְשַׁלְּמִים חֲצִי נֵזֶק? נֵימָא לֵיהּ: אַתְפַּסְתֵּיהּ לְתוֹרַאי בִּידָא מַאן דְּלָא מָצֵינָא לְאִשְׁתַּעוּיֵי דִּינָא בַּהֲדֵיהּ! מִשּׁוּם דְּאָמַר לֵיהּ: אִי אַהֲדַרְתֵּיהּ נִיהֲלָךְ, לָאו מִינָּךְ הָווּ שָׁקְלִי לֵיהּ?

The Gemara asks: If so, why does the owner pay half the cost of the damage? Let him say to the borrower: You let my ox be seized by the court, with whom I cannot engage in litigation in an attempt to reach a compromise; the court collects full payment, and you are responsible for this situation. Therefore, you should pay the entire amount. The Gemara answers that the owner is liable to pay because the borrower can say to him: If I would have returned it to you, would the court not have taken it from you?

וְנֵימָא לֵיהּ: אִי אַהֲדַרְתֵּיהּ נִיהֲלֵיהּ, הֲוָה מַעֲרִיקְנָא לֵיהּ לְאַגְמָא! מִשּׁוּם דְּאָמַר לֵיהּ: סוֹף סוֹף לָאו מֵעֲלִיָּיה הַווּ מִשְׁתַּלְּמִי?

The Gemara asks: But if that is the case, let the owner say to him in response: If you would have returned it to me I would have smuggled it to the marsh, and the court would not have been able to seize it. The Gemara answers: The owner cannot say this, because the borrower can say to him: Ultimately, would the injured party not then have received payment from your superior-quality property, as is the halakha in the case of a forewarned ox, where the compensation paid is not only from the proceeds of the sale of the belligerent ox?

הָנִיחָא הֵיכָא דְּאִית לֵיהּ נִכְסֵי, הֵיכָא דְּלֵית לֵיהּ נִכְסֵי מַאי אִיכָּא לְמֵימַר?

The Gemara comments: This explanation works out well in a case where the owner has other property from which compensation can be collected, besides the ox. But where he does not have other property, what is there to say? In that case, the borrower has in fact caused him loss.

מִשּׁוּם דְּאָמַר לֵיהּ: כִּי הֵיכָא דְּמִשְׁתַּעְבַּדְנָא לְדִידָךְ, הָכִי נַמִי מִשְׁתַּעְבַּדְנָא לְהָאֵיךְ, מִדְּרַבִּי נָתָן;

The Gemara answers: The reason the borrower is exempt is because he can say to the owner: Just as I am indebted to you, to return your ox to you, so too, I am indebted to that injured party to whom you owe compensation. This is due to the ruling of Rabbi Natan.

דְּתַנְיָא, רַבִּי נָתָן אוֹמֵר: מִנַּיִן לַנּוֹשֶׁה בַּחֲבֵירוֹ מָנֶה, וַחֲבֵירוֹ בַּחֲבֵירוֹ, מִנַּיִן שֶׁמּוֹצִיאִין מִזֶּה וְנוֹתְנִים לָזֶה? תַּלְמוּד לוֹמַר: ״וְנָתַן לַאֲשֶׁר אָשַׁם לוֹ״.

As it is taught in a baraita that Rabbi Natan says: From where is it derived that if one is owed one hundred dinars by another, and the other person, i.e., the debtor, is owed one hundred dinars by another person, the court appropriates payment from that latter debtor and gives the money directly to this first creditor, without going through the middleman, who is both the first debtor and the second creditor? The verse states, with regard to returning stolen property: “And he gives it to the one with regard to whom he is guilty” (Numbers 5:7), indicating that there is a situation where the liable party pays a third party to whom his creditor owes money in turn.

״הוּעַד בְּבֵית שׁוֹאֵל וְהֶחֱזִירוֹ לַבְּעָלִים – בְּעָלִים מְשַׁלְּמִין חֲצִי נֵזֶק, וְשׁוֹאֵל פָּטוּר מִכְּלוּם״.

It is stated at the end of the baraita cited earlier (40a): If the ox was rendered forewarned in the house of the borrower, and the borrower then returned it to the owner and it subsequently gored, the owner pays half the cost of the damage and the borrower is exempt from paying any compensation.

סֵיפָא רְשׁוּת מְשַׁנָּה, רֵישָׁא רְשׁוּת אֵינָהּ מְשַׁנָּה!

The Gemara asks: The last clause of that baraita indicates that a change of custody changes the status of the ox; if it was rendered forewarned while in the borrower’s possession and was then returned to its owner, the owner pays only half the cost of the damage for any subsequent damage it might cause, as it is no longer considered forewarned. By contrast, the first clause of the same baraita, which teaches that the ox retains its status as forewarned even after being borrowed, indicates that a change of custody does not change the status of the ox.

אֲמַר רַבִּי יוֹחָנָן: תַּבְרָא, מִי שֶׁשָּׁנָה זוֹ לֹא שָׁנָה זוֹ.

Rabbi Yoḥanan said: This baraita is disjointed [tavra]. The tanna who taught this clause did not teach that clause.

רַבָּה אֲמַר: מִדְּרֵישָׁא רְשׁוּת אֵינָהּ מְשַׁנָּה, סֵיפָא נַמִי רְשׁוּת אֵינָהּ מְשַׁנָּה. וְסֵיפָא הַיְינוּ טַעֲמָא, מִשּׁוּם דְּאָמַר לֵיהּ: לָאו כָּל כְּמִינָךְ דִּמְיַיעֲדַתְּ לֵיהּ לְתוֹרַאי.

Rabba said: From the fact that the first clause follows the opinion that a change of custody does not change the status of the ox, it is inferred that the last clause also follows the opinion that a change of custody does not change its status. And this is the reason that in the last clause the ox reverts to its status of innocuousness: It is because the owner can say to the borrower: It is not in your power to render my ox forewarned, as I did not give it to you with that intention and it was your negligence that caused the change in its status. Therefore, the owner is not liable to pay additional compensation that results from the status the ox acquired under the custody of the borrower.

רַב פַּפָּא אֲמַר: מִדְּסֵיפָא רְשׁוּת מְשַׁנָּה, רֵישָׁא נַמִי רְשׁוּת מְשַׁנָּה. וְרֵישָׁא הַיְינוּ טַעֲמָא, מִשּׁוּם דְּכָל מָקוֹם שֶׁהוֹלֵךְ – שֵׁם בְּעָלָיו עָלָיו.

Rav Pappa said: From the fact that the last clause follows the opinion that a change of custody changes the status of the ox, the first clause also follows the opinion that a change of custody changes its status. And this is the reason that in the first clause the ox is considered forewarned even when in the custody of the borrower: It is because wherever it goes, the name of its owner is upon it. Since it was rendered forewarned under its owner’s custody, with whom it remains identified, it is not considered to have undergone a change of custody.

״שׁוֹר הָאִצְטָדִין אֵינוֹ חַיָּיב מִיתָה״. אִיבַּעֲיָא לְהוּ: מַהוּ לְגַבֵּי מִזְבֵּחַ?

§ The mishna teaches that a stadium ox is not liable to be put to death, since it was trained to gore. A dilemma was raised before the Sages: If an ox kills a person it may not be brought as an offering, even if it is not put to death. If a stadium ox kills a person, what is the halakha with regard to sacrificing it on the altar?

רַב אָמַר: כָּשֵׁר, וּשְׁמוּאֵל אָמַר: פָּסוּל. רַב אָמַר כָּשֵׁר, אָנוּס הוּא. וּשְׁמוּאֵל אָמַר פָּסוּל, הֲרֵי נֶעֱבַד בּוֹ עֲבֵירָה.

Rav says that it is fit to be brought as an offering, and Shmuel says that it is disqualified. Rav says that the ox is fit because it acted due to circumstances beyond its control, as goring is what it was trained to do; and Shmuel says that it is disqualified as, in any event, a transgression was committed through it.

מֵיתִיבֵי: ״מִן הַבְּהֵמָה״ – לְהוֹצִיא אֶת הָרוֹבֵעַ וְאֶת הַנִּרְבָּע, ״מִן הַבָּקָר״ – לְהוֹצִיא אֶת הַנֶּעֱבַד, ״מִן הַצֹּאן״ – לְהוֹצִיא אֶת הַמּוּקְצֶה, ״וּמִן הַצֹּאן״ – לְהוֹצִיא אֶת הַנּוֹגֵחַ;

The Gemara raises an objection from a baraita that interprets the verse: “You shall bring your offering from the cattle, even from the herd or from the flock” (Leviticus 1:2). The phrase “from the cattle” is mentioned to exclude an animal that engaged in bestiality and an animal that was the object of bestiality from eligibility to be brought as an offering. The phrase “from the herd” is mentioned to exclude an animal that had been worshipped as a god. “From the flock” is mentioned to exclude an animal that had been set aside for idol worship. “or from the flock” is mentioned to exclude an animal that gores a person, killing him.

אָמַר רַבִּי שִׁמְעוֹן: אִם נֶאֱמַר רוֹבֵעַ, לָמָּה נֶאֱמַר נוֹגֵחַ? וְאִם נֶאֱמַר נוֹגֵחַ, לָמָּה נֶאֱמַר רוֹבֵעַ?

The baraita continues: Rabbi Shimon said: If it is stated that an animal that engaged in bestiality is disqualified from being brought as an offering, why is it stated that an animal that gores is disqualified? And if it is stated that an animal that gores is disqualified, why is it stated that an animal that engaged in bestiality is disqualified?

מִפְּנֵי שֶׁיֵּשׁ בָּרוֹבֵעַ שֶׁאֵין בַּנּוֹגֵחַ, וְיֵשׁ בַּנּוֹגֵחַ שֶׁאֵין בָּרוֹבֵעַ;

He explains: It is because there is a stringency pertaining to an animal that engaged in bestiality that does not pertain to one that gores, and, conversely, there is a stringency pertaining to an animal that gores that does not pertain to an animal that engaged in bestiality.

רוֹבֵעַ – עָשָׂה בּוֹ אוֹנֶס כְּרָצוֹן, נוֹגֵחַ – לֹא עָשָׂה בּוֹ אוֹנֶס כְּרָצוֹן. נוֹגֵחַ – מְשַׁלֵּם כּוֹפֶר, רוֹבֵעַ – אֵינוֹ מְשַׁלֵּם אֶת הַכּוֹפֶר. לְפִיכָךְ הוּצְרַךְ לוֹמַר רוֹבֵעַ וְהוּצְרַךְ לוֹמַר נוֹגֵחַ.

He clarifies: With regard to an animal that engaged in bestiality, the Torah renders a case where it is a victim of circumstances beyond its control like a case where it acted willfully, as it is disqualified in either case. By contrast, with regard to an animal that gores, the Torah does not render a case where it is a victim of circumstances beyond its control like a case where it acted willfully. Conversely, with regard to an animal that gores, its owner pays the ransom; whereas the owner of an animal that engaged in bestiality does not pay a ransom. Therefore, the Torah had to state that an animal that engaged in bestiality is disqualified and had to state that an animal that gores is disqualified.

קָתָנֵי מִיהַת: רוֹבֵעַ – עָשָׂה בּוֹ אוֹנֶס כְּרָצוֹן, נוֹגֵחַ – לֹא עָשָׂה בּוֹ אוֹנֶס כְּרָצוֹן. לְמַאי הִלְכְתָא, לָאו לְקָרְבָּן?

The Gemara explains the objection: In any event, the baraita teaches that with regard to an animal that engaged in bestiality, the Torah renders a case where it is a victim of circumstances beyond its control like a case where it acted willfully. By contrast, with regard to an animal that gores, the Torah does not render a case where it is a victim of circumstances beyond its control like a case where it acted willfully. With regard to what halakha is this stated? Is it not with regard to the animal’s eligibility to be brought as an offering? Accordingly, a stadium ox, which is considered a victim of circumstances beyond its control, is fit to be brought as an offering, contrary to Shmuel’s opinion.

לָא, לִקְטָלָא.

The Gemara answers: No, it is with regard to the animal being put to death, i.e., the ox is not killed if it is a victim of circumstances beyond its control.

הָכִי נַמִי מִסְתַּבְּרָא, דְּאִי אָמְרַתְּ לְקָרְבָּן, נוֹגֵחַ לֹא עָשָׂה בּוֹ אוֹנֶס כְּרָצוֹן, לָאו אוֹנֶס דִּידֵיהּ כְּתִיב וְלָאו רָצוֹן דִּידֵיהּ כְּתִיב! אֶלָּא לָאו, לִקְטָלָא.

So too, it is reasonable, as if you say that the ruling of the baraita is with regard to the animal’s eligibility to be brought as an offering, how can the baraita state the following: By contrast, with regard to an animal that gores, the Torah does not render a case where it is a victim of circumstances beyond its control like a case where it acted willfully. Neither are circumstances beyond its control written in that context, nor is its willingness written; the issue is not mentioned in the Torah at all. Rather, is the ruling of the baraita not stated with regard to the animal being put to death, where this distinction is indicated in the Torah? The mishna interprets the phrase: “And if an ox gores” (Exodus 21:28), as indicating that the ox is not put to death in a case where it is induced to gore; therefore, this distinction is mentioned in the Torah with regard to the animal being put to death. Accordingly, the baraita does not address the topic of dispute between Rav and Shmuel.

אָמַר מָר: נוֹגֵחַ – מְשַׁלֵּם אֶת הַכּוֹפֶר, רוֹבֵעַ – אֵינוֹ מְשַׁלֵּם אֶת הַכּוֹפֶר. הֵיכִי דָּמֵי? אִילֵימָא דְּרַבְעַהּ וְקַטְלַהּ, מַה לִּי קַטְלַהּ בְּקַרְנָא מַה לִּי קַטְלַהּ בִּרְבִיעָה!

§ The Master said in the same baraita: With regard to an animal that gores, its owner pays the ransom, whereas the owner of an animal that engaged in bestiality does not pay a ransom. What are the circumstances under which the owner of an animal that engaged in bestiality is not liable to pay the ransom? If we say that it is when the animal engaged in bestiality with a woman and killed her in the process, what is the difference to me whether it killed her with its horn, and what is the difference to me whether it killed her through bestiality?

וְאֶלָּא דְּרַבְעַהּ וְלָא קַטְלַהּ, הַאי דְּלָא מְשַׁלֵּם כּוֹפֶר – מִשּׁוּם דְּלָא קַטְלַהּ הוּא!

And rather, if the baraita is referring to a case where the animal engaged in bestiality with her but did not kill her, in that case, this halakha that he does not pay a ransom is simply due to the fact that it did not kill her, so paying ransom is irrelevant; it is not a feature associated with the halakhot of an animal that engaged in bestiality.

אֲמַר אַבַּיֵי: לְעוֹלָם דְּרַבְעַהּ וְלָא קַטְלַהּ, דְּאַתְיוּהָ לְבֵי דִּינָא וְקַטְלוּהָ, מַהוּ דְּתֵימָא

Abaye said: Actually, it is referring to a case where the animal engaged in bestiality with her but did not kill her, and it is still noteworthy that its owner is not liable to pay ransom, as the woman was brought to court, and they executed her for her transgression. Lest you say