Bava Kamma 48
מַאי בִּרְשׁוּת וּמַאי שֶׁלֹּא בִּרְשׁוּת אִיכָּא?
what reason is there to rule one way where the produce is brought in with permission, and what reason is there to rule another way where the produce is brought in without permission? With regard to damage done by the ox of a stranger, it should not make any difference.
אָמְרִי: בִּרְשׁוּת – הָוְיָא לַהּ שֵׁן בִּרְשׁוּת הַנִּיזָּק, וְשֵׁן בִּרְשׁוּת הַנִּיזָּק חַיֶּיבֶת. שֶׁלֹּא בִּרְשׁוּת – הָוְיָא לַהּ שֵׁן בִּרְשׁוּת הָרַבִּים, וְשֵׁן בִּרְשׁוּת הָרַבִּים פְּטוּרָה.
The Sages said in response: If he brought in the produce with permission, it is a case of damage under the category of Eating (see 2a), in the domain of the injured party, since, with respect to the produce, the courtyard is treated as belonging to its owner, and the halakha is that if an animal causes damage categorized as Eating in the domain of the injured party, the ox’s owner is liable. But if he brought it into the courtyard without permission, it is a case of damage under the category of Eating in the public domain, and if an animal causes damage categorized as Eating in the public domain, the ox’s owner is exempt. Given this explanation, the answer to the question of what type of safeguarding the courtyard owner accepted cannot be derived from the baraita.
תָּא שְׁמַע: הִכְנִיס שׁוֹרוֹ לַחֲצַר בַּעַל הַבַּיִת שֶׁלֹּא בִּרְשׁוּת, וּבָא שׁוֹר מִמָּקוֹם אַחֵר וּנְגָחוֹ – פָּטוּר. וְאִם הִכְנִיס בִּרְשׁוּת – חַיָּיב. מַאן פָּטוּר וּמַאן חַיָּיב? לָאו פָּטוּר בַּעַל חָצֵר, וְחַיָּיב בַּעַל חָצֵר?
Come and hear a proof from another baraita: If one brought his ox into a homeowner’s courtyard without permission, and an ox from elsewhere comes and gores it, he is exempt. But if he brought it into the courtyard with permission, he is liable. The Gemara clarifies: Who is exempt and who is liable? Is it not the owner of the courtyard who is exempt and the owner of the courtyard who is liable? If so, this proves that the owner of the courtyard accepted responsibility for all damage occurring on his premises.
לָא; פָּטוּר בַּעַל הַשּׁוֹר, וְחַיָּיב בַּעַל הַשּׁוֹר. אִי הָכִי, מַאי בִּרְשׁוּת וּמַאי שֶׁלֹּא בִּרְשׁוּת אִיכָּא?
The Gemara responds: No, the owner of the ox that gored is exempt, and the owner of the ox that gored is liable. The Gemara asks: If so, what significance is there to specifying the case of with permission, and what significance is there to specifying the case of without permission with regard to this ox? For damage categorized as Goring (see 2b), the owner of the animal is liable wherever the goring occurred, even in the public domain.
אָמְרִי: הָא מַנִּי – רַבִּי טַרְפוֹן הִיא, דְּאָמַר: מְשׁוּנֶּה קֶרֶן בַּחֲצַר הַנִּיזָּק – נֶזֶק שָׁלֵם מְשַׁלֵּם. בִּרְשׁוּת – הָוְיָא לַהּ קֶרֶן בַּחֲצַר הַנִּיזָּק, וּמְשַׁלֵּם נֶזֶק שָׁלֵם; שֶׁלֹּא בִּרְשׁוּת – הָוְיָא לַהּ קֶרֶן בִּרְשׁוּת הָרַבִּים, וְלָא מְשַׁלְּמָא אֶלָּא חֲצִי נֶזֶק.
The Sages said in response: In accordance with whose opinion is this? It is in accordance with the opinion of Rabbi Tarfon, who says: The halakha of damage categorized as Goring in the courtyard of the injured party is different, and the owner of the goring animal pays the full cost of the damage. According to this opinion, the baraita should be interpreted as follows: If the injured party brought his ox into the courtyard with permission, it is a case of damage categorized as Goring in the property of the injured party, and the owner of the Goring animal pays the full cost of the damage. But if he brought it in without permission, it is a case of damage categorized as Goring in the public domain, and he pays only half the cost of the damage.
הַהִיא אִיתְּתָא דְּעַלַּא לְמֵיפָא בְּהָהוּא בֵּיתָא, אֲתָא בַּרְחָא דְּמָרֵי דְבֵיתָא אַכְלֵהּ לְלֵישָׁא, חֲבִיל וּמִית. חַיְּיבַהּ רָבָא לְשַׁלּוֹמֵי דְּמֵי בַרְחָא.
§ The Gemara relates that there was a certain woman who entered a certain house to bake. Subsequently, a goat belonging to the owner of the house came and ate the woman’s dough, and as a result it became overheated and died. Rava deemed the woman liable to pay compensation for the goat.
לֵימָא פְּלִיגָא אַדְּרַב – דְּאָמַר רַב: הֲוָיא לַהּ שֶׁלֹּא תֹּאכַל?
The Gemara suggests: Shall we say that Rava disagrees with the opinion of Rav, as Rav says that in a case where someone brings in his produce to another’s courtyard without permission, and the latter’s animal is injured by eating it, the owner of the produce is nevertheless exempt, since the animal should not have eaten it.
אָמְרִי: הָכִי הַשְׁתָּא?! הָתָם שֶׁלֹּא בִּרְשׁוּת – לָא קַבֵּיל עֲלֵיהּ נְטִירוּתָא, הָכָא בִּרְשׁוּת – קַבֵּיל עֲלֵיהּ נְטִירוּתָא.
The Sages said in response: How can these cases be compared? There, in the case where someone brought in his produce without permission, he did not accept responsibility upon himself for safeguarding against the produce causing damage, whereas here, where the woman brought in the dough with permission, the woman did accept responsibility upon herself for safeguarding against the dough causing damage.
וּמַאי שְׁנָא מֵהָאִשָּׁה שֶׁנִּכְנְסָה לִטְחוֹן חִטִּין אֵצֶל בַּעַל הַבַּיִת שֶׁלֹּא בִּרְשׁוּת, וַאֲכָלָתַן בְּהֶמְתּוֹ שֶׁל בַּעַל הַבַּיִת – פָּטוּר, וְאִם הוּזְּקָה – חַיֶּיבֶת; טַעְמָא שֶׁלֹּא בִּרְשׁוּת, הָא בִּרְשׁוּת – פְּטוּרָ[ה]!
The Gemara asks: And in what way is it different from the case of the baraita mentioned previously: In the case of a woman who entered the house of a homeowner without permission in order to grind wheat, and the homeowner’s animal ate the wheat, he is exempt? And moreover, if the homeowner’s animal was injured by the wheat, the woman is liable. The Gemara infers: The reason she is liable is specifically that she entered without permission, but if she entered with permission, she would be exempt.
אָמְרִי: לִטְחוֹן חִטִּים, כֵּיוָן דְּלָא בָּעֲיָא צְנִיעוּתָא מִידֵּי – לָא (בָּעֵי) מְסַלְּקִי מָרָווֹתָא דְּחָצֵר נַפְשַׁיְיהוּ, וַעֲלֵיהּ דִּידֵיהּ רָמֵי נְטִירוּתָא; אֲבָל לְמֵיפָא, כֵּיוָן דְּבָעֲיָא הִיא צְנִיעוּתָא – מָרָווֹתָא דְּחָצֵר מְסַלְּקִי נַפְשַׁיְיהוּ, הִלְכָּךְ עֲלַהּ דִּידַהּ רַמְיָא נְטִירוּתָא.
The Sages said in response: If she entered the house to grind wheat, since she does not require any privacy, the owners of the courtyard do not need to absent themselves from there, and the responsibility for safeguarding against damage therefore rests upon them. But if she enters to bake, since she requires privacy for this, as the process of kneading involves exposing her elbows, the owners of the courtyard absent themselves from there to allow her to bake. Therefore, the responsibility for safeguarding against damage to anything in the courtyard rests upon her.
הִכְנִיס שׁוֹרוֹ לַחֲצַר בַּעַל הַבַּיִת. אָמַר רָבָא: הִכְנִיס שׁוֹרוֹ לַחֲצַר בַּעַל הַבַּיִת שֶׁלֹּא בִּרְשׁוּת, וְחָפַר בָּהּ בּוֹרוֹת שִׁיחִין וּמְעָרוֹת – בַּעַל הַשּׁוֹר חַיָּיב בְּנִזְקֵי חָצֵר, וּבַעַל חָצֵר חַיָּיב בְּנִזְקֵי הַבּוֹר.
§ The mishna teaches: If one brought his ox inside the homeowner’s courtyard without permission and the homeowner’s ox gored it or the homeowner’s dog bit it, the homeowner is exempt. Rava says: If one brought his ox into a homeowner’s courtyard without permission, and the ox dug pits, ditches, or caves in it, the owner of the ox is liable for the damage caused by his animal to the courtyard, but the owner of the courtyard is liable for any damage caused by the pit if someone falls inside.
אַף עַל גַּב דְּאָמַר מָר: ״כִּי יִכְרֶה אִישׁ בּוֹר״ – וְלֹא שׁוֹר בּוֹר; הָכָא, כֵּיוָן דְּאִית לֵיהּ לְהַאיְךְ לְמַלּוֹיֵיהּ, וְלָא קָא מַלְּיֵיהּ – כְּמַאן דְּכַרְיֵיהּ דָּמֵי.
Even though the Master says that when the verse states: “And if a man shall open a pit” (Exodus 21:33), it limits the liability for the pit to a person who digs a pit, but not an ox that digs a pit, in which case the owner of the courtyard should be exempt, nevertheless, here, in Rava’s statement, since this owner of the courtyard should have filled the pit with earth and he did not fill it, he is considered like someone who actually dug the pit.
וְאָמַר רָבָא: הִכְנִיס שׁוֹרוֹ לַחֲצַר בַּעַל הַבַּיִת שֶׁלֹּא בִּרְשׁוּת, וְהִזִּיק אֶת בַּעַל הַבַּיִת, אוֹ בַּעַל הַבַּיִת הוּזַּק בּוֹ – חַיָּיב. רָבַץ – פָּטוּר.
And similarly, Rava says: In the case of one who brought his ox into a homeowner’s courtyard without permission, and the ox injured the homeowner, or the homeowner stumbled and was injured by it, the owner of the ox is liable. If the ox crouched [ravatz], and by doing so caused damage, the ox’s owner is exempt.
וּמִשּׁוּם דְּרָבַץ, פָּטוּר? אָמַר רַב פָּפָּא: מַאי ״רָבַץ״ – שֶׁהִרְבִּיץ גְּלָלִים, וְנִטְנְפוּ כֵּלָיו שֶׁל בַּעַל הַבַּיִת; דְּהָוֵיא גְּלָלִים בּוֹר, וְלֹא מָצִינוּ בּוֹר שֶׁחִיֵּיב בּוֹ אֶת הַכֵּלִים.
The Gemara asks: And is he exempt because the animal caused damage when it crouched? Rav Pappa said: What is the meaning of the term ravatz? It means that it dropped feces [hirbitz] on the ground, and subsequently the clothes of the homeowner were soiled. Consequently, the feces constitute a pit, and we do not find a case of damage categorized as Pit that one is liable for causing damage to utensils. Therefore, the owner of the animal is exempt.
הָנִיחָא לִשְׁמוּאֵל, דְּאָמַר: כׇּל תַּקָּלָה – בּוֹר הוּא. אֶלָּא לְרַב, דְּאָמַר: עַד דְּמַפְקַר לֵיהּ, מַאי אִיכָּא לְמֵימַר?
The Gemara asks: This works out well according to the opinion of Shmuel, who says: Any obstruction is categorized as Pit, and the same halakha exempting the one responsible for the pit from damage to utensils applies to them as well. But according to the opinion of Rav, who says that one’s property is not categorized as Pit until he renounces ownership of it, what is there to say?
אָמְרִי: סְתָם גְּלָלִים – אַפְקוֹרֵי מַפְקַיר לְהוּ.
The Sages said in response: The animal’s owner usually renounces ownership of ordinary feces, and so they are categorized as Pit even according to the opinion of Rav.
וְאָמַר רָבָא: נִכְנַס לַחֲצַר בַּעַל הַבַּיִת שֶׁלֹּא בִּרְשׁוּת, וְהִזִּיק אֶת בַּעַל הַבַּיִת אוֹ בַּעַל הַבַּיִת הוּזַּק בּוֹ – חַיָּיב. הִזִּיקוֹ בַּעַל הַבַּיִת – פָּטוּר.
And Rava says: In the case of a person or an animal that entered the courtyard of a homeowner without permission and injured the homeowner, or the homeowner was injured by stumbling on the intruder, the person or owner of the animal is liable. Moreover, if the homeowner damages the person or animal, he is exempt.
אָמַר רַב פָּפָּא: לָא אֲמַרַן – אֶלָּא דְּלָא הֲוָה יָדַע בֵּיהּ; אֲבָל הֲוָה יָדַע בֵּיהּ – הִזִּיקוֹ בַּעַל הַבַּיִת, חַיָּיב. מַאי טַעְמָא? מִשּׁוּם דְּאָמַר לֵיהּ: נְהִי דְּאִית לָךְ רְשׁוּתָא לְאַפּוֹקֵי, לְאַזּוֹקֵי לֵית לָךְ רְשׁוּתָא.
Rav Pappa said: We said this only when the homeowner did not know of his presence. But if he knew of his presence, even if he entered without permission, then if the homeowner injured him, the homeowner is liable. What is the reason? It is due to the fact that the injured party can say to the owner of the courtyard: Although you have the right to eject me from your courtyard, you do not have the right to injure me.
וְאָזְדוּ לְטַעְמַיְיהוּ, דְּאָמַר רָבָא וְאִיתֵּימָא רַב פָּפָּא:
The Gemara comments: And Rava and Rav Pappa, who hold that one who enters without permission is liable if damage is caused, follow their lines of reasoning, as Rava says, and some say it was Rav Pappa who said it:
שְׁנֵיהֶם בִּרְשׁוּת אוֹ שְׁנֵיהֶם שֶׁלֹּא בִּרְשׁוּת, הִזִּיקוּ זֶה אֶת זֶה – חַיָּיבִין. הוּזְּקוּ זֶה בָּזֶה – פְּטוּרִין. טַעְמָא דִּשְׁנֵיהֶם בִּרְשׁוּת אוֹ שְׁנֵיהֶם שֶׁלֹּא בִּרְשׁוּת; אֲבָל אֶחָד בִּרְשׁוּת וְאֶחָד שֶׁלֹּא בִּרְשׁוּת, דְּבִרְשׁוּת – פָּטוּר, שֶׁלֹּא בִּרְשׁוּת – חַיָּיב.
In a case of two people who were both somewhere with permission, or two people who were both somewhere without permission, if they injure each other directly, they are both liable. If they were injured by one another through stumbling over one another, they are exempt. From this statement, it may be inferred that the reason both are liable if either damages the other is specifically that the two of them were both there with permission or the two of them were both there without permission. But if one, i.e., the homeowner, was there with permission, and the other entered without permission, then the one who was there with permission is exempt if he injured the other, but the one who entered without permission is liable if he injured the homeowner, in accordance with the opinion of Rava and Rav Pappa.
נָפַל לְבוֹר וְהִבְאִישׁ מֵימָיו – חַיָּיב. אָמַר רָבָא: לֹא שָׁנוּ אֶלָּא שֶׁהִבְאִישׁ בִּשְׁעַת נְפִילָה, אֲבָל לְאַחַר נְפִילָה – פָּטוּר. מַאי טַעְמָא? הָוֵי שׁוֹר ״בּוֹר״ וּמַיִם ״כֵּלִים״, וְלֹא מָצִינוּ בּוֹר שֶׁחִיֵּיב בּוֹ אֶת הַכֵּלִים.
§ The mishna teaches: If the ox that he brought into the courtyard without permission fell into the owner’s pit and contaminated its water, the owner of the ox is liable. Rava says: They taught this halakha only in a case where the ox contaminated the water at the time of the fall. But if it contaminated the water after the fall, e.g., the animal died there and the decomposing carcass despoiled the water, he is exempt. What is the reason? The ox, in this case, is considered as a pit, and the water has the status of utensils that fall into a pit, and we have not found a case of damage categorized as Pit that renders one liable for causing damage to utensils. Therefore, he is exempt.
הָנִיחָא לִשְׁמוּאֵל, דְּאָמַר: כֹּל תַּקָּלָה – בּוֹר הוּא. אֶלָּא לְרַב, דְּאָמַר: עַד דְּמַפְקַר לֵיהּ, מַאי אִיכָּא לְמֵימַר?
The Gemara asks: This works out well according to the opinion of Shmuel, who says: Any obstruction is categorized as Pit, and the same halakha exempting the one responsible for the pit from damage to utensils applies to them as well. But according to the opinion of Rav, who says that one’s property is not categorized as Pit until he renounces ownership of it, what is there to say? Presumably, the owner did not renounce ownership of the ox or even of the carcass.
אֶלָּא אִי אִיתְּמַר – הָכִי אִיתְּמַר, אָמַר רָבָא: לֹא שָׁנוּ אֶלָּא שֶׁהִבְאִישׁ מִגּוּפוֹ, אֲבָל הִבְאִישׁ מֵרֵיחוֹ – פָּטוּר. מַאי טַעְמָא? גְּרָמָא בְּעָלְמָא הוּא, וּגְרָמָא בְּעָלְמָא לָא מִיחַיַּיב.
Rather, if this statement was stated, it was stated like this: Rava says that they taught this halakha only in the case where the ox contaminated the water with its body, i.e., its carcass. But if it contaminated the water with its stench, the owner is exempt. What is the reason? It is because the damage is caused merely by an indirect action. Although the ox’s owner was initially responsible for his animal falling into the pit, the stench did not result directly from this action. It subsequently occurred on its own, and one is not liable for damage that is caused merely by an indirect action.
הָיָה אָבִיו אוֹ בְּנוֹ לְתוֹכוֹ – מְשַׁלֵּם אֶת הַכּוֹפֶר. וְאַמַּאי? הָא תָּם הוּא! אָמַר רַב: בְּמוּעָד לִיפּוֹל עַל בְּנֵי אָדָם בְּבוֹרוֹת עָסְקִינַן.
§ The mishna teaches: If the homeowner’s father or son were inside the pit at the time the ox fell and the person died as a result, the owner of the ox pays the ransom. The Gemara asks: But why does he pay a ransom? Isn’t the ox innocuous, in which case its owner is not liable to pay a ransom? Rav says: Here we are dealing with an ox that is forewarned for falling on people in pits.
אִי הָכִי, בַּר קְטָלָא הוּא! אָמַר רַב יוֹסֵף: דַּחֲזָא יְרוֹקָא וּנְפַל.
The Gemara asks: If so, the ox is liable to be put to death, because if it is forewarned for this behavior, it is considered to have acted intentionally. Rav Yosef said in response: This is a case where it saw some grass that it intended to eat on the edge of the pit, and fell in the pit instead. Since there was no intention to cause damage by falling, the ox is not liable to be put to death, but since it was forewarned for this behavior, its owner still pays ransom.
שְׁמוּאֵל אָמַר: הָא מַנִּי – רַבִּי יוֹסֵי הַגְּלִילִי הִיא, דְּאָמַר: תָּם מְשַׁלֵּם חֲצִי כּוֹפֶר.
Shmuel said: This ox mentioned in the mishna is innocuous, and in accordance with whose opinion is this? It is the opinion of Rabbi Yosei HaGelili, who says: The owner of an innocuous ox that caused damage pays half a ransom. Therefore, when the mishna states that he pays a ransom, it means that he pays half a ransom.
עוּלָּא אָמַר: רַבִּי יוֹסֵי הַגְּלִילִי הִיא – דְּאָמַר כְּרַבִּי טַרְפוֹן, דְּאָמַר: קֶרֶן בַּחֲצַר הַנִּיזָּק – נֶזֶק שָׁלֵם מְשַׁלֵּם. הָכִי נָמֵי, כּוֹפֶר שָׁלֵם מְשַׁלֵּם.
Ulla said: The mishna is in accordance with the opinion of Rabbi Yosei HaGelili, who maintains that payment of a ransom is applicable even in the case of an innocuous ox, but he states his ruling in accordance with the opinion of Rabbi Tarfon, who says: For damage categorized as Goring that is carried out by an innocuous ox in the courtyard of the injured party, the ox’s owner pays the full cost of the damage. So too, he pays a full ransom despite the fact that the ox is innocuous.
בִּשְׁלָמָא לְעוּלָּא, הַיְינוּ דְּקָתָנֵי: הָיָה אָבִיו אוֹ בְּנוֹ לְתוֹכוֹ. אֶלָּא לִשְׁמוּאֵל, מַאי אִירְיָא אָבִיו אוֹ בְּנוֹ? אֲפִילּוּ אַחֵר נָמֵי!
The Gemara asks: Granted, according to Ulla, this explanation is consistent with that which the mishna teaches: If his father or his son were inside the pit at the time the ox fell and the person died as a result, the owner of the ox pays the ransom. The mishna thereby provides a case of damage categorized as Goring in the courtyard of the injured party. But according to Shmuel’s explanation, why mention his father or his son specifically? Even if the injured party were another person, not a close relative of the owner of the property, the owner of the animal would be required to pay half a ransom, and even if it was in the public domain.
אוֹרְחֵיהּ דְּמִילְּתָא קָתָנֵי.
The Gemara answers: Indeed, that is the case, and the mishna is simply teaching this ruling by means of the typical scenario, that presumably it was someone from the family of the one who owns the property containing the pit that was inside the pit.
וְאִם הִכְנִיס בִּרְשׁוּת – בַּעַל חָצֵר חַיָּיב [כּוּ׳]. אִיתְּמַר, רַב אָמַר: הִלְכְתָא כְּתַנָּא קַמָּא, וּשְׁמוּאֵל אָמַר: הִלְכְתָא כְּרַבִּי.
§ The mishna teaches: But if he brought the ox into the courtyard with permission, the owner of the courtyard is liable for the damage caused. Rabbi Yehuda HaNasi says: The homeowner is not liable in any of the cases in the mishna, even if he gave his permission for the items to be brought onto his premises, unless he explicitly accepts responsibility upon himself to safeguard them. It was stated that the Sages disagreed with regard to the halakha in this dispute: Rav said that the halakha is in accordance with the opinion of the first tanna, and Shmuel said that the halakha is in accordance with the opinion of Rabbi Yehuda HaNasi.
תָּנוּ רַבָּנַן: ״כְּנוֹס שׁוֹרְךָ וְשׇׁמְרוֹ״ – הִזִּיק חַיָּיב, הוּזַּק פָּטוּר. ״כְּנוֹס שׁוֹרְךָ וַאֲנִי אֶשְׁמְרֶנּוּ״ – הוּזַּק חַיָּיב, הִזִּיק פָּטוּר.
The Sages taught a case similar to that of the mishna: If the owner of the courtyard said to the owner of the ox: Bring your ox into my courtyard and safeguard it, then if the ox caused damage to the property of the owner of the courtyard, the animal’s owner is liable. And if the ox was injured, the owner of the courtyard is exempt. If he said to him: Bring your ox in and I will safeguard it, then if the ox was injured, the owner of the courtyard is liable; if the ox caused damage, its owner is exempt.
הָא גוּפָא קַשְׁיָא – אָמְרַתְּ: ״כְּנוֹס שׁוֹרְךָ וְשׇׁמְרוֹ״ – הִזִּיק חַיָּיב, הוּזַּק פָּטוּר;
The Gemara asks: This matter itself is difficult: You said in the first clause that if the courtyard’s owner said to him: Bring your ox into my courtyard and safeguard it, then if the ox caused damage, its owner is liable. And if it was injured, the owner of the courtyard is exempt.
טַעְמָא דַּאֲמַר לֵיהּ ״שׇׁמְרוֹ״ דְּחַיָּיב בַּעַל הַשּׁוֹר וּפָטוּר בַּעַל חָצֵר, הָא סְתָמָא – חַיָּיב בַּעַל חָצֵר וּפָטוּר בַּעַל הַשּׁוֹר, דְּבִסְתָמָא מְקַבֵּל עֲלֵיהּ נְטִירוּתָא.
The Gemara infers: The reason that the owner of the ox is liable and the owner of the courtyard is exempt is specifically that the owner of the courtyard said to the owner of the ox: Safeguard it. One can infer that if he granted permission for the ox to enter without specifying that the owner of the animal safeguard it, the owner of the courtyard is liable if the ox was injured, and the owner of the ox is exempt if it caused damage. The reason the owner of the courtyard is liable is that the tanna of this baraita holds that in an unspecified case, where the obligation to safeguard the animal was not mentioned, the owner of the courtyard implicitly accepts upon himself responsibility for safeguarding the ox.
אֵימָא סֵיפָא: ״כְּנוֹס שׁוֹרְךָ וַאֲנִי אֶשְׁמְרֶנּוּ״ – הוּזַּק חַיָּיב, הִזִּיק פָּטוּר.
The Gemara continues its analysis of the baraita: Say the latter clause: If he said to him: Bring your ox in and I will safeguard it, then if the ox was injured, the owner of the courtyard is liable; if the ox caused damage, its owner is exempt.
טַעְמָא דַּאֲמַר לֵיהּ ״וַאֲנִי אֶשְׁמְרֶנּוּ״ הוּא דִּמְחַיֵּיב בַּעַל הֶחָצֵר וּפָטוּר בַּעַל הַשּׁוֹר, הָא סְתָמָא – חַיָּיב בַּעַל הַשּׁוֹר וּפָטוּר בַּעַל חָצֵר, דְּבִסְתָמָא לָא מְקַבֵּל עֲלֵיהּ נְטִירוּתָא;
The Gemara infers: The reason that the owner of the courtyard is liable and the owner of the ox is exempt is specifically that the homeowner said to the owner of the ox: And I will safeguard it. One can infer that if the owner of the courtyard granted permission for the ox to enter without specifying that the owner of the animal safeguard it, the owner of the ox is liable if it damages the property of the owner of the courtyard, and the owner of the courtyard is exempt if the ox is damaged. The reason the owner of the courtyard is not liable is that the tanna of this baraita holds that in an unspecified case, where the obligation to safeguard the animal was not mentioned, the owner of the courtyard does not accept upon himself responsibility for safeguarding the ox.
אֲתָאן לְרַבִּי, דְּאָמַר: עַד שֶׁיְּקַבֵּל עֲלֵיהּ נְטִירוּתָא בַּעַל הַבַּיִת לִשְׁמוֹר. רֵישָׁא רַבָּנַן וְסֵיפָא רַבִּי?!
The Gemara concludes its analysis: We come to the opinion of Rabbi Yehuda HaNasi, who says that unless the homeowner explicitly accepts upon himself responsibility for safeguarding, he is not liable. Based on this understanding, the first clause of the baraita is in accordance with the opinion of the Rabbis, and the latter clause is in accordance with the opinion of Rabbi Yehuda HaNasi.
אָמַר רַבִּי אֶלְעָזָר: תַּבְרָא, מִי שֶׁשָּׁנָה זוֹ לֹא שָׁנָה זוֹ. רָבָא אָמַר: כּוּלַּהּ רַבָּנַן הִיא, אַיְּידֵי דְּנָסֵיב רֵישָׁא ״שׇׁמְרוֹ״, תְּנָא סֵיפָא ״וַאֲנִי אֶשְׁמְרֶנּוּ״.
Rabbi Elazar said: Indeed, the baraita is disjointed, and the one who taught this clause did not teach that clause. Rava said: The entire baraita is in accordance with the opinion of the Rabbis, and no inference should be drawn from the extra words: And I will safeguard it, in the latter clause. Since the first clause mentions that the owner of the courtyard instructed: Safeguard it, the latter clause also teaches that he said: And I will safeguard it, to maintain symmetry. The same halakha applies even when granting permission to enter without specification, since, according to the Rabbis, granting permission to enter includes an implicit acceptance of responsibility for safeguarding.
רַב פָּפָּא אָמַר: כּוּלַּהּ רַבִּי הִיא; וְסָבַר לַהּ כְּרַבִּי טַרְפוֹן, דְּאָמַר: קֶרֶן בַּחֲצַר הַנִּיזָּק – נֶזֶק שָׁלֵם מְשַׁלֵּם.
Rav Pappa said: The entire baraita is in accordance with the opinion of Rabbi Yehuda HaNasi, who holds that if no specification was made, the owner of the courtyard does not accept responsibility, as inferred from the latter clause of the baraita. And as for the inference drawn from the first clause, he holds in accordance with the opinion of Rabbi Tarfon, who says: For damage categorized as Goring that is carried out by an innocuous ox in the courtyard of the injured party, the ox’s owner pays the full cost of the damage.
הִלְכָּךְ, אֲמַר לֵיהּ ״שׇׁמְרוֹ״ – לָא מַקְנֵי לֵיהּ מָקוֹם בֶּחָצֵר, וְהָוְיָא לַיהּ קֶרֶן בַּחֲצַר הַנִּיזָּק, וְקֶרֶן בַּחֲצַר הַנִּיזָּק מְשַׁלֵּם נֶזֶק שָׁלֵם.
Therefore, if the owner of the courtyard said to the owner of the ox: Safeguard it, he is clearly not transferring the rights to any portion of the courtyard to him, as evident from the fact that the owner of the ox must safeguard it and may not treat the courtyard as if it were his own. Consequently, if the ox gored, it is a case of damage categorized as Goring in the courtyard of the injured party, and one responsible for damage categorized as Goring in the courtyard of the injured party pays the full cost of the damage.
לָא אֲמַר לֵיהּ ״שׇׁמְרוֹ״ – אַקְנוֹיֵי אַקְנִי לֵיהּ מָקוֹם בֶּחָצֵר, וְהָוְיָא לֵיהּ חֲצַר הַשּׁוּתָּפִין, וְקֶרֶן בַּחֲצַר הַשּׁוּתָּפִין אֵינוֹ מְשַׁלֵּם אֶלָּא חֲצִי נֶזֶק.
By contrast, if the owner of the courtyard did not say to the owner of the ox: Safeguard it, then by granting him permission to bring the ox onto his courtyard, he effectively transfers rights to an area within the courtyard. Therefore, with regard to damages, it becomes a courtyard of partners, and the one responsible for damage categorized as Goring in the courtyard of partners pays only half the cost of the damage.
מַתְנִי׳ שׁוֹר שֶׁהָיָה מִתְכַּוֵּין לַחֲבֵירוֹ, וְהִכָּה אֶת הָאִשָּׁה וְיָצְאוּ יְלָדֶיהָ – פָּטוּר מִדְּמֵי וְלָדוֹת. וְאָדָם שֶׁהָיָה מִתְכַּוֵּין לַחֲבֵירוֹ, וְהִכָּה הָאִשָּׁה וְיָצְאוּ יְלָדֶיהָ – מְשַׁלֵּם דְּמֵי וְלָדוֹת.
MISHNA: In the case of an ox that was intending to gore another ox but struck a pregnant woman, and her offspring, i.e., the fetuses, emerged due to miscarriage, the owner of the ox is exempt from paying compensation for miscarried offspring. But in the case of a person who was intending to injure another but struck a pregnant woman instead, and her offspring emerged due to miscarriage, he pays compensation for miscarried offspring.
כֵּיצַד מְשַׁלֵּם דְּמֵי וְלָדוֹת? שָׁמִין הָאִשָּׁה כַּמָּה הִיא יָפָה עַד שֶׁלֹּא יָלָדָה, וְכַמָּה הִיא יָפָה מִשֶּׁיָּלָדָה. אָמַר רַבָּן שִׁמְעוֹן בֶּן גַּמְלִיאֵל:
How does he pay compensation for miscarried offspring, i.e., how is their value assessed? The court appraises the value of the woman by calculating how much she would be worth if sold as a maidservant before giving birth, and how much she would be worth after giving birth. He then pays the difference in value to the woman’s husband. Rabban Shimon ben Gamliel said:
