One of the most interesting phenomena we continue to encounter in this tractate is a rabbinic blurring of the lines between humans and other animals. We get another fascinating example of this on today’s daf. The mishnah on yesterday’s daf stated:
If a heresh ox or a shoteh ox or a katan ox fell into a pit, the owner of the pit is liable.
A heresh is one who is deaf, a shoteh is one who is considered legally incompetent (usually for reasons involving mental illness or intellectual disability) and a katan is a minor. These terms are common across the Talmud, but in almost all instances, they are legal categories used to describe human beings. The Gemara today, then, asks the obvious question: What exactly is a heresh ox or a shoteh ox or a katan ox? We are given a wrong answer first:
If we say: An ox belonging to a deaf person, an ox belonging to someone who is legally incompetent, or an ox belonging to a minor: Does that mean that if an ox of someone abled (falls into the pit then the pit’s owner is) exempt?
The mishnah doesn’t say a “heresh’s ox” but a “heresh ox.” Nonetheless, the anonymous voice of the Gemara considers the possibility that we should understand it as the former. And the rabbis observe that if these adjectives refer to the human owner of the ox, then we could infer that the owner of a pit is never liable for damage to the oxen owned by abled adults.
But as the rabbis swiftly note, that really makes no sense. Why would the identity of the owner of the damaged property matter for assessing damages? Since this explanation neither fits the language of the mishnah nor satisfactorily explains it, the Talmud turns to the more obvious reading:
Rabbi Yohanan says: An ox that is deaf, or an ox that is legally incompetent, or an ox that is a minor.
If an ox is either very young, intellectually disabled, or deaf, it may be unable to fully sense the pit and respond quickly and appropriately. (Though it’s unclear to me why deafness, in particular, would affect how an ox sensed the pit, it’s likely included here because these categories are so often grouped together.) In this case, the owner of the pit is nonetheless liable for harm.
The Gemara next explores what this ruling means for oxen who are described as mentally competent:
Rava said: This ruling applies specifically to an ox that is deaf, an ox that is legally incompetent, and an ox that is a minor. But for an ox that is of standard intelligence (the owner of the pit is) exempt.
If an abled adult ox falls into a pit, the owner of the pit is exempt from paying damages. Why?
He (the ox) should have looked carefully while walking.
Oxen don’t regularly fall into pits, and so if they are able to sense the pit and avoid it, and choose not to (though I don’t know why they would), the owner of the pit is not liable.
Today’s discussion uses the same rabbinic categories that define human legal competence on animals. And while we can imagine it would be relatively easy to determine if an ox was deaf, or young, it seems less obvious how one could determine whether an ox is impaired by mental illness or intellectual disability. Can we imagine oxen receiving psychological assessments? Taking IQ tests? Unlikely. But today’s daf reminds us, yet again, that there is less (legal) distance between humans and other animals than we might sometimes imagine.
Read all of Bava Kamma 54 on Sefaria.
This piece originally appeared in a My Jewish Learning Daf Yomi email newsletter sent on December 26th, 2023. If you are interested in receiving the newsletter, sign up here.
