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Steinsaltz

then in the case of an ox killing a person, where the Torah renders small oxen like large ones with regard to this act, as a young calf that kills a person is killed just as an adult ox that kills a person, is it not logical that the Torah renders it liable for killing minors, i.e., a boy or a girl, just as for killing adults? Why is it necessary for the verse to teach this halakha?

The Gemara rejects this claim: No, this cannot be derived by logic alone. If you say that a person who kills a person is liable even when the victim is a minor, this may be due to the extra severity in the case of a human assailant, as he is liable to pay four types of indemnity for causing injury; pain, humiliation, medical costs, and loss of livelihood, in addition to payment for the actual damage. Shall you also say that this is the halakha with regard to an ox, whose owner is not liable to pay these four types of indemnity? Clearly, this halakha cannot be derived merely through logical comparison between the two cases. Therefore, the verse states: “Whether it has gored a son or has gored a daughter,” to render it liable for minors as well as adults.

And I have derived this halakha only with regard to forewarned oxen; from where do I derive that in the case of an innocuous ox, it is killed if it kills a boy or a girl?

The baraita asks: Could this not be derived through logical inference? Since the Torah renders an ox liable to be killed for killing a man or a woman, and likewise renders it liable to be killed for killing a boy or a girl; then just as when it renders it liable to be killed for killing a man or a woman you do not differentiate between an innocuous ox and a forewarned ox, as both are stoned, so too, when it renders an ox liable to be killed for killing a boy or a girl do not differentiate between an innocuous ox and a forewarned ox.

And furthermore, it can be inferred a fortiori: If with regard to a man or a woman, whose power is diminished with regard to damages because adults who cause damage are liable to pay, but nevertheless you do not differentiate between an innocuous ox and a forewarned ox that kills them; then with regard to a boy or girl, whose power is enhanced with regard to damages because they are not liable to pay for damage they cause, is it not logical that you should not differentiate between an innocuous ox and a forewarned ox that kills them?

The baraita answers that you could say in response: But does one derive the halakha of a lenient matter from a stringent matter in order to be more stringent with regard to it? If the Torah is stringent with regard to the case of a forewarned ox, which is a stringent matter, rendering it liable to be killed for killing a minor, does that mean that you should be stringent with regard to an innocuous ox, which is a relatively lenient matter?

And furthermore, there is another reason to reject the earlier opinion: If you say that an innocuous ox is liable to be killed for killing a man or a woman, as they are obligated to observe the mitzvot, which gives them importance, does that mean that you should say the same with regard to a boy or a girl, who are exempt from the mitzvot?

Since this halakha could not have been derived through logic alone, the verse states: “Whether it has gored a son or has gored a daughter,” stating the phrase “has gored” twice, to teach that it is referring both to the goring of an innocuous ox and to the goring of a forewarned ox, and both to goring that causes death and to goring that causes injury. In all these cases the owner of the ox is liable even if the ox gores a minor.

MISHNA: If an ox was rubbing against a wall, and as a result the wall fell on a person and killed him; or if the ox intended to kill another animal but killed a person; or if it intended to kill a gentile but killed a Jew; or intended to kill a non-viable baby but killed a viable person; in all these cases the ox is exempt from being killed.

GEMARA: Shmuel says: The ox is exempt from being put to death, since it did not intend to kill, but its owner is liable to pay ransom. And Rav says: They are exempt from this liability and from that liability.

The Gemara asks about Shmuel’s opinion: And why is he liable to pay ransom? Isn’t the ox innocuous with regard to this action? The Gemara answers: As Rav says in a different context, it is referring to an ox that was forewarned with regard to falling on people in pits. Here too, it is referring to an ox that was forewarned with regard to rubbing against walls, causing them to fall on people.

The Gemara asks: If so, if it was forewarned with regard to this behavior, it clearly intended to kill the person and is therefore subject to being put to death, contrary to the ruling in the mishna. The Gemara explains: Granted there, in the case where the ox was forewarned with regard to falling on people in pits, it could be that it saw a vegetable on the edge of the pit and subsequently fell in, without any intention to kill. But here, where it rubbed against a wall, causing it to fall on a person, and was forewarned with regard to this behavior, what is there to say in its defense?

The Gemara answers: Here also the case is where it rubbed against the wall for its pleasure and not in order to kill. The Gemara asks: And from where do we know that it did not intend to kill? The Gemara answers: Because even after the wall fell it was still rubbing against it, which proves that this was its intention.

Talmud - Bavli - The William Davidson digital edition of the Koren No=C3=A9 Talmud
with commentary by Rabbi Adin Steinsaltz Even-Israel (CC-BY-NC 4.0)
אדם סלומון
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