Bava Kamma Chapter 4, Mishnah 1. The Mishnah continues to discuss the calculations for collection from an ox that gored several times, and at the center of the discussion is the law of collecting "migufa" (from its body) - the limitation according to which the owner of the damaging ox is only liable up to the value of the ox itself.
To fully understand the depth of the Mishnah, we will return to a matter that we touched upon briefly at the end of the third chapter (Mishnah 9), where we learned the dispute between Rabbi Akiva and Rabbi Yishmael regarding the nature of the injured party's claim on the damager's ox.
Two Understandings Regarding the Nature of the Claim:
The injured party as a creditor: The injured party is merely a regular creditor to whom the damager owes money, and the ox serves only as a sort of collateral to guarantee the obligation, and the collection is limited up to the total value of the ox.
The injured party as a partner: Immediately upon the goring, the injured party becomes an owner of a portion of the ox itself, and he has a direct acquisition and ownership in it.
There is a major practical difference between them regarding the responsibility if the ox goes back and damages again:
If the injured party is a creditor: The damager remains the sole owner, and therefore he bears full responsibility if the ox gores a second time.
If the injured party is a partner: Once he becomes a joint owner of the ox, he also shares in its responsibility, and it turns out that the first injured party is partially responsible for the second damage.
The Mortgage Parable:
To illustrate the difference, which is not intuitive at all, let us observe the way a mortgage works. When a person buys a house for one hundred thousand dollars and borrows fifty thousand from the bank, many assume that this means the bank owns half of the house until the debt is paid off, making the borrower and the bank partners in the house. According to this understanding, if the house were to collapse and crush the neighbor's house, the injured neighbor could turn not only to the borrower but also to the bank and claim: "You are also an owner of this house, and you must compensate me for the damage caused by your house."
But the truth is not so. The bank lends fifty thousand dollars, and the borrower is the sole and exclusive owner of the house, except that he owes the bank the loan amount - a complete creditor relationship. However, if the debt is not paid, the bank holds a lien and mortgage on the house, and it is entitled to foreclose and take possession of it. The house therefore serves as collateral alone.
Here too, the same two possibilities exist: If the injured party is nothing but a creditor, his status is like that of the bank, and the next injured party has no claim against him. But if the bank were an owner of half the house, it would also bear half the responsibility, and if the house were to collapse and cause damage, it would be liable for the damage.
The Approaches of the Tannaim in Our Mishnah:
This dispute, although rooted in the dispute between Rabbi Akiva and Rabbi Yishmael, is not mentioned in our Mishnah by their names at all. The two Sages named here are Rabbi Meir and Rabbi Shimon:
Rabbi Meir holds like Rabbi Yishmael: the damaged party is merely a creditor, and he has no ownership in the ox of the damager that caused the damage.
Rabbi Shimon holds like Rabbi Akiva: as soon as your ox gores my ox, I become a partner in your ox proportionally - according to the amount of half damages that you owe me.
The Case Not Explicit in the Mishnah - Seizing the Ox as Collateral:
There is an additional detail in the Mishnah that is not explicitly stated at all, which is the source of much confusion. Even though according to Rabbi Meir, Shimon, the damaged party, is merely a creditor, and seemingly would not bear responsibility if that ox were to go and gore Levi's ox, nevertheless, the case the Mishnah is dealing with is that after Reuven's ox gored Shimon's ox, Shimon seized Reuven's ox as collateral: he took it into his possession, although he was not necessarily permitted to do so, claimed his right to it, and seized it. This is the scenario regarding which Rabbi Meir states his ruling in the first half of the Mishnah.
Once Shimon seizes the ox, he becomes a watchman over it. The ox is still owned by Reuven, but Shimon is responsible for it because he became its watchman. Therefore, when that ox goes out and gores Levi's ox, Shimon is the liable party, as he is the one who became obligated to guard it and made himself a watchman. Levi's claim is therefore directed at Shimon and not at Reuven. Had Shimon not seized Reuven's ox and not become a watchman, Levi would have had a claim against Reuven as well.
Let us illustrate this with numbers. Had a person not seized his fellow's ox as collateral, according to Rabbi Meir, who holds like Rabbi Yishmael that the damaged party is merely a creditor, the ruling would be as follows: all the oxen are worth 200, and after their death they are worth nothing. Reuven's ox killed Shimon's ox, and Shimon is entitled to half damages - 100. If, before he managed to collect, Reuven's ox went and killed Levi's ox, Levi is also entitled to half damages - an additional 100. Reuven sells his ox, receives 200, and gives 100 to each of them.
But this is not the case of the Mishnah. The Mishnah deals with a situation where after Reuven's ox gored Shimon's ox, and before Reuven paid, Shimon seized the ox as collateral, a sort of foreclosure, and said: "Reuven, you will take your ox back when you pay me the 100 that you owe me." While the ox is deposited in Shimon's hands and under his responsibility as a watchman and guardian, it went out and killed Levi's ox. Now Levi turns to Shimon and says: "You are the watchman and you are responsible, you must pay me the half damages - 100."
It turns out that the 100 that Reuven was supposed to pay Shimon now passes to Levi. The ox is sold for 200: Reuven keeps 100, Levi receives 100, and Shimon receives nothing, because he was responsible for Levi's damage. Whereas, had Shimon not taken the ox into his possession and become a watchman, Reuven would have sold his ox and given 100 to each of them.
In the words of the Mishnah:
"Shor shenagach arba'ah vachamishah shevarim zeh achar zeh" - an ox that gored four or five oxen one after the other, in succession: Reuven's ox gored Shimon's ox, then Levi's ox, and then Yehudah's ox.
It is worth noting in passing: this Mishnah is relevant only in the context we are dealing with, that the law of 'migupo' limits the liability to the value of the damaging ox. An ox that gored three times usually becomes a mu'ad, and there is no longer half damages and no law of 'migupo'. Rather, the case of our Mishnah is that in one way or another the ox remained in the category of a tam, and therefore it pays half damages 'migupo' even on the fourth, fifth, and sixth goring. There are various creative ways to establish this - for example, that between each goring the ox played with small children and did not gore, or that it was among other oxen and did not gore them, and because of this it did not become a full mu'ad. We will not elaborate on this here.
"Yeshalem la'acharon shebahen" - the payment for half damages is given to the last of the damaged parties. Although the Mishnah does not explicitly state this, it is referring to a situation where each damaged party in turn seized the ox and became a watchman, and therefore when the ox went out and gored the next one, the one who seized it is responsible. As in the example brought above: the ox is worth 200, first Shimon's ox was killed and then Levi's ox; Reuven keeps 100, and the 100 that was supposed to be paid to Shimon passes to Levi, and Shimon receives nothing. The last one takes everything.
"Ve'im yesh bo motar" - if there is a surplus remaining. For example: Levi's ox was not worth 200 but only 100. Since it was killed and is worth nothing, its half damages are only 50. It turns out that Reuven owes 100 to Shimon, of which 50 passes to Levi and 50 remains in Shimon's hands. Levi receives 50, Shimon 50, and Reuven is left with 100.
Another example: If Levi's ox was worth 150, and when it was killed its value dropped to zero, and Shimon was the one who seized the ox and became a watchman - Levi is entitled to 75, half his damages. Reuven gives him 75, the remainder - 25 - he gives to Shimon, and he keeps 100 for himself.
"Yachazor leshelefanav" - once half the damages are paid in full to the last one, the surplus returns to the victim who preceded him. And if there are not just three, but four or five in the chain, where each one in turn seizes the ox and becomes a watchman, and the ox continues to cause damage - the surplus returns to the one before him as well, and he too receives payment.
"Ve'acharon acharon niskar" - the very last one in the chain is in the best position, as he receives his payment in full, and all the rest take only the remainder. "Divrei Rabbi Meir".
It emerges that Rabbi Meir's approach is based on two principles: First, that the victim is merely a creditor; and second, that the specific case of our Mishnah is where the victim seized the animal to hold it as collateral. Had he not seized the animal, he would have received his payment in full.
Rabbi Shimon's Approach - The Victim as a Partner:
Rabbi Shimon holds like Rabbi Akiva, that the victim automatically becomes a partner. He immediately acquires his rightful share, not as collateral to collect from, but with full ownership of that portion of the ox. For example: Reuven's ox is worth 200 and Shimon's ox is worth 200, Reuven's ox killed Shimon's ox and the carcass is worth nothing. Shimon lost 200, half his damages is 100, and therefore 100 out of the ox that is worth 200 now belongs to Shimon. It emerges that Shimon holds a value of 100 and Reuven a value of 100, and they are equal partners - fifty percent each.
And this is not only ownership of half the asset, but also of half the liability. If now - and there is no seizing involved here - that same ox went out and killed Levi's ox, which is also worth 200 and after its death is worth nothing, both Reuven and Shimon are obligated to pay, each according to his relative share of half the damages. Half the damages is 100, and since each of them owns half the ox, each pays 50, for a total of 100 to Levi. The ox is sold for 200, 100 of which goes to Levi, and the remaining 100 is divided equally between Reuven and Shimon, and so on.
In the words of the Mishnah according to Rabbi Shimon's approach:
"Rabbi Shimon omer: shor shaveh matayim shenagach shor shaveh matayim" - Reuven's ox is worth 200 and Shimon's ox is worth 200. Reuven's ox killed Shimon's ox, and the carcass is worth nothing. Reuven takes 100 from the value of the ox, and Shimon takes 100 - half his damages - from the value of the ox. And if that same ox in which they are partners, before it is sold, went out and killed a third ox, Levi's ox, which is also worth 200 - Levi is entitled to half his damages, 100. Reuven and Shimon, the equal partners in the ox, remain with the balance: 100, fifty each.
And if that same ox, before it was sold, went out and killed Yehudah's ox - what does the division table look like now, and what is the ownership and partnership in the ox at that moment? Prior to this goring, 100 out of 200, meaning a half, belonged to Levi, and 50 out of 200, meaning a quarter, belonged to each of Reuven and Shimon. Yehudah's ox was worth 200 and now it is worth nothing, and therefore he is entitled to half damages - 100. Since the ox is worth 200, Yehudah becomes the owner of half of it, 100 out of 200, and the three previous partners owe him that same 100.
And how is the liability divided among them? Levi, who was the owner of half the ox, pays half of the 100, meaning 50. Reuven and Shimon, each of whom was the owner of a quarter, pay a quarter of the damages, 25 each. It emerges: Yehudah takes 100; Levi, who preceded him, gives up half his share and remains with 50; and Reuven and Shimon take 25 each. (The Mishnah uses the term gold dinar, and the exchange rate was one gold dinar for 25 silver dinars.) And the calculation works out perfectly: 25 plus 25 of Reuven and Shimon are 50, plus 50 of Levi - 100, plus 100 of Yehudah - 200, which is the total value of the ox.
Halachah: The ruling follows Rabbi Akiva, meaning it is like Rabbi Shimon. The significance of this is that once a person becomes a victim of damage, he immediately acquires ownership of the damaging ox, and along with it, automatic liability is imposed upon him if that same ox goes and causes further damage.