Bava Kamma 33

Messy knitting.

My grandmother was an avid, mediocre knitter. Her end products are full of stray threads, burly snarls of wool and stitches that march halfway across a row and suddenly turn back, as if they’ve changed their minds about where they’re heading. The misshapen blankets and sweaters she made are among my most treasured possessions.

The Talmud reminds me of my grandmother’s creations. There are debates that dangle, un-tied-off threads of thought and knots that require much puzzling to unravel. Even a relatively mundane and concrete discussion can feel meandering and incomplete. Such is the case on today’s daf.

The mishnah on today’s daf considers cases in which oxen or people cause one another mutual harm. In general, the damages are paid to the party that suffered greater harm, with the calculation being the difference between damages caused. For instance:

Two innocuous oxen that injured each other, the owner (of the ox that did greater harm) pays half the damages with regard to the difference. If both oxen were forewarned, the owner (of the ox that did greater damage) pays the full cost of the damage with regard to the difference.

A similar ruling is made with regard to people who harm one another. People are always considered forewarned, so the one who did great harm pays full damages, according to the difference in harm caused.

But it gets more complicated when we mix categories, especially in the mishnah’s concluding case of an innocuous ox and a person (who, remember, is considered forewarned), each of whom harms the other. 

If the innocuous ox caused greater damage to the person, its owner pays only half the damage with regard to the difference. Rabbi Akiva says: The owner of the innocuous ox that injured a person pays the full cost of the damage with regard to the difference.

The Gemara posits that both the rabbis, who require half damages, and Rabbi Akiva, who requires full damages, pin their interpretations on Exodus 21:31 — “Whether it has gored a son, or has gored a daughter, according to this judgment shall it be done to him.” — and, more specifically, on the turn of phrase “according to this judgment.” The question, of course, is: According to which judgment?

Exodus 21:31 comes in the midst of a passage about goring ox cases. Does “according to this judgment” refer, as the rabbis assert, to the judgment of Exodus 21:29? Or, per Rabbi Akiva, does it refer to Exodus 21:28? If the former, then the punishment would be half damages, and if the latter, full damages. Here is the argument of the rabbis:

As is the judgment concerning an ox that causes damage to an ox, so is the judgment with regard to an ox that causes damage to a person. Just as with regard to an ox that causes damage to an ox, if it is innocuous its owner pays half the cost of the damage and if it is forewarned he pays the full cost of the damage, so too, with regard to an ox that causes damage to a person, if it is an innocuous ox its owner pays half the cost of the damage …

The rabbis draw an analogy from the cases of an ox that harms an ox to understand the law of damages for an ox that harms a person. Fundamentally, the rabbis say, it’s the same system of calculating damages.

But Rabbi Akiva sees it differently, drawing a comparison to Exodus 21:29, the case of a forewarned ox. As far as he’s concerned, if an ox gores a person, full damages are appropriate — even if the ox was innocuous.

Where does this leave us with regard to the original argument over partial or complete compensation? It’s hard to say. Like so many debates in the Talmud, there’s no clear resolution here, leaving future generations to pick up the discussion’s strands. Just like my grandmother’s incomplete and messy knitting, though, it doesn’t make the text any less dear or meaningful — and might even make the opening and invitation it extends to us that much more endearing.

Read all of Bava Kamma 33 on Sefaria.

This piece originally appeared in a My Jewish Learning Daf Yomi email newsletter sent on December 5th, 2023. If you are interested in receiving the newsletter, sign up here.

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