Bava Kamma, Chapter 3, Mishnah 9. The subject of this Mishnah is a tam ox and how its payment is made, which is subject to two laws:
Chatzi nezek - The owner of the tam pays for half the damage.
Migupo - The total payment is limited to the value of the animal that caused the damage with its horn. Therefore, at most, the damager will have to hand over or sell his animal to make the payment.
The Mishnah has two parts. The first part stands on its own, is the subject of a separate Gemara discussion, and builds on these foundations.
The first part of the Mishnah:
The Mishnah opens with a basic law: "Shor shaveh maneh shenagach shor shaveh matayim" - an ox worth a maneh that gored an ox worth two hundred. We have before us a unique case of two animals in a goring incident: Animal A belonging to Mr. A (the damager) and Animal B belonging to Mr. B (the victim). The damager's ox is worth a maneh, which is one hundred zuz, and it gored Mr. B's ox which is worth two hundred zuz (two hundred here is a number, not the name of a coin). "Ve'ein haneveilah yafah klum" - we will ignore the carcass value of Animal B, treating it as if it is worth nothing, for example if it fell off a cliff into an abyss.
The law is "Notel et hashor" - the victim takes the ox. The victim's ox was worth two hundred and is now worth nothing, so his damage is two hundred; half the damage is one hundred. Conveniently, Mr. A's animal is worth exactly one hundred, and therefore Mr. B takes Mr. A's ox, and Animal A transfers to his ownership.
This Mishnah implies, and this is indeed its intention, that the victim literally takes the animal itself and has the right to claim it - unlike the explanation suggested until now, that the damager may pay one hundred zuz in cash, or sell his animal or hand it over, as he wishes. Our Mishnah therefore follows the opinion of Rabbi Akiva. In general, two Tanna'im disagree on this:
Rabbi Akiva - 'Yuchlat hashor': The ox that gored becomes the property of the victim. When the case is not exact, where the value of the goring tam is not exactly half of the damage caused to the victim, the two become partners in the seized animal - except that ownership and control are in the hands of the victim, alongside a secondary partner, the damager, who must be compensated if the animal is sold.
Rabbi Yishmael - 'Yusham hashor': The animal does not become the absolute property of the victim, rather the value of the damaging animal must be assessed, and the limit of the damager's liability is the total value of his animal. In other words: There is no automatic seizure or transfer of ownership from the damager to the victim, but rather a limitation of financial liability to the value of the animal.
The halachah follows Rabbi Akiva, but let us put the matter of halachah aside for now. We will return to the details of the dispute between Rabbi Akiva and Rabbi Yishmael - whether shared ownership transfers or perhaps only financial liability - later in Chapter 4, Mishnah 1, in a few mishnayos, where we will expand on it. From here we will turn to the second topic in our Mishnah.
The source for the two laws:
Here we will discuss the source of the two laws: the source that the payment is half the damage, and the source that it is paid from its body (migupo), meaning that liability is limited up to the value of the damager's animal. These matters are not explicit in the text of the Mishnah, and therefore our method of study will be as follows: First we will learn the verse; afterward we will see how the two Tanna'im who disagree in our Mishnah, Rabbi Meir and Rabbi Yehudah, expound upon it; and finally, we will return to the text of the Mishnah and see how it aligns with all that was said.
The verse is found in Shemos, Parashas Mishpatim, Chapter 21, verse 35:
"Vechi yigof shor ish es shor re'ehu" - if it happens that a person's ox pushes his friend's ox. "Yigof" means to push, gore, kick, or injure.
"Vameis" - and Mr. B's animal dies.
"Umacheru es hashor hachai" - they sell the living ox, Mr. A's ox.
"Vechatzu es kaspo" - they divide the proceeds of the sale equally.
"Vegam es hameis yechetzun" - and also the dead one, meaning the carcass, they divide.
In this verse, Chazal see the two laws - chatzi nezek and migufo. How so? The verse could have used simple language: if a tam causes damage, its owner pays half the damages. Why does it enter into the cumbersome process of selling the damaging animal, selling the carcass, and dividing the funds?
First, it should be noted that the calculation works out perfectly when reading the verse simply, but on one necessary condition: that the value of both animals, the animal of the damager and the animal of the damaged party, is equal to begin with. (They do not necessarily have to be cows; "shor" means an ox or a bull, and the case could even be a horse that attacked a sheep, and there is no difference.)
Let us go over the calculation:
Animal A and Animal B are each worth two hundred. Animal A attacks Animal B, and Animal B dies - and from now on its way is to the glue factory, to the leather tannery, or to the dogs - and the carcass is worth fifty. In Mr. B's balance, there was an asset worth two hundred, and now he possesses a carcass worth fifty; his loss is therefore two hundred minus fifty, which is one hundred and fifty. And how much must Mr. A pay him? Half of one hundred and fifty - chatzi nezek - which is seventy-five.
And how do the numbers work out in the language of the verse? After the damage, in Mr. A's balance stands an ox worth two hundred zuz, and in Mr. B's balance is a carcass worth fifty zuz. The ox is sold for two hundred, and half of it - one hundred - goes to Mr. B, and one hundred remains in Mr. A's hands. Seemingly, Mr. A transferred one hundred, while he was only obligated to pay seventy-five; however, when Mr. B sells his carcass for fifty and they divide it, twenty-five returns to Mr. A as a sort of refund. We find that Mr. B received one hundred and returned twenty-five, leaving him with a net of seventy-five - which is the chatzi nezek out of the one hundred and fifty that he suffered. The numbers therefore work out wonderfully.
But all this is only if the starting point is that both animals are worth the same amount. If they are not equal to each other - nothing works out. And from now we must wonder why the verse chose this unique case, for in practical life, who says that the animal of the damager and the animal of the damaged party are equal to each other?
According to this, there are two parts in the verse. The first part - "Umacheru es hashor hachai vechatzu es kaspo" - dictates the liquidation of the first animal and the division of its money. Here, Chazal see that the verse took the trouble to choose the specific case and obligate the sale of the animal, in order to teach the law of migufo: the source of the funds that the damaged party collects from the damager is the liquidation of the animal itself. And even though it says "vechatzu es kaspo", this is not necessarily a fifty-fifty division: like in the first case in the Mishnah, where the value of the living animal is one hundred and the damage is two hundred, the entire value of the animal transfers from the damager to the damaged party.
And from where do we know that it is speaking of chatzi nezek? Perhaps the verse means a penalty, that half the value of the living animal transfers to the damaged party, whether to his benefit or to his detriment?
The view of Rabbi Meir:
Rabbi Meir learns the second part of the verse - "Vegam es hameis yechetzun" - simply: this has no connection to the carcass. The loss caused to Mr. B by his animal being injured or dying, that is what they divide; it is as if they are halving the death itself, the loss of death - meaning chatzi nezek. The damaged party absorbs half the loss, and the damager pays half the loss. We find that the second part of the verse, according to Rabbi Meir, does not deal with carcasses at all, but rather teaches the basic law of chatzi nezek.
Hence, the first part of the verse, according to Rabbi Meir, teaches the law of migufo, that the payment funds come from the sale of the animal; and the second part teaches that we do not arbitrarily give half the sale money, but an exact chatzi nezek, provided that it is limited to migufo. We can force Reuven to sell his animal and give Shimon its entire value, but not more than that. These are the foundations of the two laws.
The Opinion of Rabbi Yehudah:
Rabbi Yehudah fundamentally agrees with both principles: the first part of the verse teaches the law of paying from its body - which is why the animal is sold - and the second part, "vegam es hameis yechetzun", teaches the law of half damages, which is limited to half. However, in his opinion, the second part discusses a case where there is a carcass that must be sold and divided, and the word "vegam" hints at this: it is an extra word that comes to teach a separate calculation - that the value of the carcass must be taken into account.
It is obvious that the value of the carcass is needed to calculate the damages themselves: animal B was worth two hundred before the goring, and now it is a carcass worth fifty, so the victim's damage is two hundred minus fifty, which is one hundred and fifty. Rabbi Yehudah's novelty relates to a different question: what is the law if, by the time they come to the rabbinical court, the carcass increases in value? At the time of the goring, the loss was one hundred and fifty zuz, but by the time they reached the court, the demand for hides grew, and suddenly the carcass is worth sixty instead of fifty.
Do the extra ten zuz belong entirely to the victim, as he claims, "The carcass is mine, and it stays in my possession" - which is the opinion of Rabbi Meir; or do they share them, as the damager claims: "Your actual loss at the time we are standing in court is not two hundred minus fifty, which is one hundred and fifty, but rather two hundred minus sixty, which is one hundred and forty. You lost less, and therefore I must give you seventy and not seventy-five" - which is the opinion of Rabbi Yehudah.
According to Rabbi Yehudah, the second part of the verse does indeed deal with the value of the carcass and taking it into account: if its value increased after the struggle between the animals and before the court's ruling, the court will rule to share the increase with the damager as well, and this is the meaning of the verse, "vegam es hameis yechetzun" - that the carcass itself must be taken into account. Rabbi Meir disagrees and holds that the entire second part comes only to teach the law of half damages, and therefore it makes no practical difference what happens to the value of the carcass: it transfers to the victim in any case.
Rabbi Yehudah concedes that if the value of the carcass drops after the time of the damage, the entire loss falls on the victim, since the carcass is his and dealing with the remains is his responsibility, and he may do with it as he wishes; he must act promptly, and if the value drops - it is his fault. However, if the value increases, this is the damager's profit, who comes out here with the upper hand.
The halachah follows Rabbi Yehudah: everyone agrees that the payment here is half damages and from its body, but if there was an increase in the value of the carcass after the incident, it too is divided between the damager and the victim - to the point that it is possible that the damager will not pay anything. If, theoretically, the value of the carcass increased from fifty back to two hundred, the damager would say: "Indeed, my animal gored your animal, but the bottom line is that you sold the carcass for two hundred, and I did not cause you any loss at all" - and he pays nothing. And if, theoretically, the value went up above two hundred, we do not say that the damager should receive money back, as that is ridiculous; but up to the point where he pays nothing at all, this is the law according to Rabbi Yehudah.
And now we will return to the text of the Mishnah:
"Shor shaveh masayim shenagach shor shaveh masayim" - a hypothetical case where animal A gored animal B, and originally both are worth two hundred. "Ve'ein haneveilah yafah klum" - it is stated that the carcass is worth nothing, as we have no interest in its value.
"Amar Rabbi Meir: al zeh ne'emar umachru es hashor hachai vechatzu es kaspo" - the verse spoke about this case, where the two animals are worth identical amounts before the incident, and only about this case: when they sell the damager's live animal and divide the money, the calculation works out perfectly. Had they not been equal in value, the calculation would not work out so well; and we also learned from the second part of the verse that it specifically refers to half damages. According to Rabbi Meir, the second part of the verse therefore has no connection to carcasses in and of themselves, but rather to the division of the loss - half damages.
"Amar Rabbi Yehudah: vechein halachah" - Rabbi Yehudah agrees that regarding the ruling, he is right: they divide the money and pay half damages from its body. "Kiyamta umachru es hashor hachai vechatzu es kaspo, velo kiyamta vegam es hameis yechetzun" - you have explained the first part of the verse: they sell the live animal and divide the money, meaning payment from its body and half damages. But you have not fulfilled the second part: the verse speaks of dividing a carcass, and in your opinion it makes no practical difference how much it is worth. Rabbi Yehudah holds that there is a practical difference, since if the carcass increases in value - they will share it as well.
"Ve'eizeh" - and what is the simple case of the verse? "Zeh shor shaveh masayim shenagach shor shaveh masayim veneveilah yafah chamishim zuz" - two animals that are worth identical amounts, two hundred and two hundred, and after animal A gored animal B, animal B died, and the carcass is still worth fifty. "Shezeh nosel chatzi hachai vechatzi hameis, vezeh nosel chatzi hachai vechatzi hameis" - the damager receives half the value of the live animal and half the value of the dead one, the carcass, and so does the victim, and the numbers work out perfectly - but only because the two animals were equal in value to begin with.
And the main novel point according to Rabbi Yehudah is this: if the carcass appreciates and becomes worth more, they share in the appreciation, and this is to the benefit of the damager. And as stated, the halachah follows Rabbi Yehudah.
In summary: In this Mishnah we learned the two laws of a tam ox - half damages and paying from its body. In its first part, we discussed the law of "shor shaveh maneh shenagach shor shaveh matayim" - an ox worth a maneh that gored an ox worth two hundred, from which we learned Rabbi Akiva's view that 'the ox is transferred,' as opposed to Rabbi Yishmael who holds that 'the ox is evaluated.' In its second part, we discussed the source of these two laws in the verse, "And they shall sell the live ox and divide its money, and also the dead one they shall divide": according to Rabbi Meir, the second part of the verse teaches only half damages and has no connection to the carcass, while according to Rabbi Yehudah, it teaches that we also consider the value of the carcass, and therefore its appreciation is divided between the damager and the victim - and this is the halachah.