Talmudic pages

Bava Kamma 38

Double standards.

Yesterday, we learned from a mishnah that if an ox owned by a Jew gores an ox owned by a non-Jew, the Jewish owner is exempt from paying damages. When the situation is reversed, however, a non-Jewish ox owner is required to pay full damages even if the ox was not an established gorer, despite the fact that half damages is the standard in such a case. 

If you find this troubling, so did the rabbis, but perhaps not for the same reasons:

They said: This is difficult whichever way. If “neighbor” is meant precisely, when a gentile’s ox gores that of a Jew, they should also be exempt. And if “neighbor” is not meant precisely, then even when a Jew’s ox gores that of a gentile, the owner should be liable.

The rabbis’ objection takes us back to Exodus 21:35, where we find one of the verses from which the laws of damages are derived: “When a person’s ox injures their neighbor’s ox and it dies, they shall sell the live ox and divide its price; they shall also divide the dead animal.”

When the Torah refers to a person’s neighbor (re’ehu), the rabbis generally understand this to refer to a Jewish neighbor. (While the verse speaks specifically about one ox killing another, the opening phrase is used as a frame for all cases of goring, whether fatal or not.) If that understanding is applied in the mishnah, then just as a Jew is not required to pay damages to a non-Jewish ox owner because both owners are not Jewish, the non-Jewish owner should not have to pay the Jewish owner either. But if the Torah is using the word neighbor more generally to mean another person, then just as a non-Jewish owner has to pay a Jewish owner, the Jewish owner should also have to pay the non-Jewish owner. That is to say, regardless of which interpretation you choose, if a non-Jewish owner has to pay damages, so should a Jewish owner. And if a Jewish owner is exempt from paying damages, so should a non-Jewish owner. But our mishnah rules otherwise. 

The Gemara brings a number of midrashim to try to prove that it was ordained by God that Jews have the right to the property of non-Jews, but not vice versa — an objective is that is problematic in its own right and not so convincing. It concludes that thread with this story:

The Roman kingdom once sent two military officials to the sages of Israel who said, “Teach us your Torah.” They read the Torah, and repeated it a second and a third time. 

At the time of their departure, they said to the sages: “We have examined your entire Torah and it is true, except for this matter that you state: If an ox of a Jew that gored the ox of a gentile, the owner is exempt, whereas a gentile that gored the ox of a Jew, whether it was innocuous or forewarned, the owner pays the full damage.”

The Roman officers study the entire Torah and embrace the truth they find therein — except for the particular rule about when the ox of a Jew gores the ox of a non-Jew, or vice versa. The Romans, like the rabbis before them, object to the dissonance between the mishnah and the two possible readings of the biblical text. But their issue is not merely hermeneutic, but practical as well: If non-Jews find out about this rule, it might not sit well with them. Not to worry, they tell the rabbis:

We will not inform this matter to the kingdom.

While the double standard in the mishnah is codified into Jewish law, it was probably never put into practice. As the story implicitly reminds us, the rabbis lived under the shadow of empires that were large and powerful. And while over the millennia rabbis may have had some influence over civil disputes within the Jewish community, they were rarely, if ever, in a position to exempt a Jew from paying damages to a non-Jewish neighbor — nor to compel the non-Jewish neighbor to pay damages to a Jew. Maybe the mere thought of being able to do so brought a smile to their faces, just like the one they may have had when they told the story of the Roman soldiers who came to study Torah and left with a deep appreciation for the truths they found within.

Read all of Bava Kamma 38 on Sefaria.

This piece originally appeared in a My Jewish Learning Daf Yomi email newsletter sent on December 10th, 2023. If you are interested in receiving the newsletter, sign up here.

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