The mishnah on today’s daf teaches:
If an ox of a deaf-mute, an imbecile, or a minor gored an ox of a (halakhically) competent person, the owner of the ox is exempt from liability.
And if an ox belonging to a deaf-mute, an imbecile, or a minor gored another ox and caused damage, the court appoints a steward for them and warns them with regard to the ox that gored in the presence of the steward.
Individuals who fall into the category of deaf-mute, imbecile or minor are not considered legally responsible for their actions and therefore if their ox gores another person’s ox they are not held liable — at least, not the first time. However, it is dangerous to have someone in the community who cannot take adequate measures to prevent goring, and so the rabbis establish that if the ox in question gores once, the court steps in and appoints a steward who will take responsibility for it.
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The Gemara asks about the precise role of the steward appointed (specifically) in the case of a minor orphan who owns a goring ox: Who actually pays the damages?
Rabbi Yohanan says: From the superior-quality property of the orphans.
Rabbi Yosei bar Hanina says: From the superior-quality property of the steward.
At base, the question is: How far does the steward’s responsibility extend? Is it to take measures to keep the community safe from the beast? Or does it go as far as paying damages, in the event those measures fail, from their own pocket? Rabbi Yohanan and Rabbi Yosei bar Hanina disagree, with the former charging the orphans and the latter the steward.
Now we have another problem because, as the Gemara points out, that doesn’t seem like a position that Rabbi Yohanan would take, as he is cited elsewhere saying:
The court collects from (orphans) either to pay a debt recorded in a document that has the payment of interest stipulated in it, in order to ensure that the interest does not diminish the value of their estate, or for the payment of a woman’s marriage contract, due to their interest in not paying for her sustenance.
Elsewhere, Rabbi Yohanan has gone on the record as saying that there are only two cases in which a court would force an orphan to pay: against a debt on their estate that has such a high interest rate it is eroding the value of the estate itself, or against the ketubah of the deceased’s wife. If we understand this to be Rabbi Yohanan’s complete view, then he cannot also require an orphan to pay for the damages caused by their ox.
To solve this conundrum, the Gemara suggests that the positions have been reversed. Perhaps it was Rabbi Yohanan who thinks the steward must pay the damages and Rabbi Yosei bar Hanina who thinks the penalty should come from the property of the minor orphan. To this proposed solution, Rava replies:
Due to the difficulty created by the contradiction between the statement of Rabbi Yohanan here and the statement of Rabbi Yohanan there, you render Rabbi Yosei bar Hanina mistaken!? Wasn’t Rabbi Yosei bar Hanina a judge who delved into the complexities of the halakhah? Rather, do not reverse the opinions. The resolution is that one who causes damage to another by not safeguarding his animal is different. Rabbi Yohanan says that compensation is collected from the superior-quality property of the orphans, because if you say that it should be collected from the superior-quality property of the steward, people will refrain from becoming stewards. By contrast, Rabbi Yosei bar Hanina says that it is collected from the superior-quality property of the steward, and they are subsequently repaid by the orphans when they grow up.
Because Rabbi Yosei Bar Hanina was well-versed in this area of the law, Rava cannot believe he got the matter confused. Rather, he suggests that both rabbis hold the orphan ultimately responsible for payment, it’s just that one of them requires the damages to be paid by the steward who is then later reimbursed by the orphan.
Sometimes, as we have often seen, the Gemara is unable to determine the right answer to a question and it is left for future generations to work out. Other times, the discussion leads us to an answer. Today, the right answer is known all along, and the real problem is understanding the various sources and teachings in light of that answer.
Read all of Bava Kamma 39 on Sefaria.
This piece originally appeared in a My Jewish Learning Daf Yomi email newsletter sent on December 11th, 2023. If you are interested in receiving the newsletter, sign up here.
