Tied Up in Knots Over a Goring Ox

Literary critic Adam Kirsch is reading a page of Talmud a day, along with Jews around the world.

In this week’s Daf Yomi reading, the Talmud continued to elaborate the laws about how to deal with a goring ox. The original biblical statement of this law, in the Book of Exodus, is the origin of the concepts of negligence and due care in halakhah. The owner of an ox that goes wild and kills another ox or a person is not held responsible for its actions; the ox itself is to be killed, but its owner does not have to pay damages. If, on the other hand, that ox has a history of goring, and the owner does not take any precautions for restraining it, then he becomes liable for the damage or death it may cause. It is a simple and fair principle, but as often happens, the rabbis of Talmud find that it does not cover all the many complications that may arise in real life, or in the curious minds of the commentators.

To start with, the rabbis notice a glaring logical contradiction in the biblical law. According to Exodus, an ox that kills a human being is to be stoned to death immediately; yet it is only after goring three times that the ox earns the designation “forewarned.” How, then, could any ox ever be forewarned, when it wouldn’t live long enough to kill three times? As the Gemara says in Bava Kamma 41a, “How can you find a forewarned ox?” One straightforward answer to this question would be that the Bible is incoherent on this point, that it simply did not think things through. But of course such an answer is unavailable to the rabbis, who are fairly free in elaborating and revising the Bible, but never simply criticize or repudiate it.

Instead, they are forced to try to come up with some highly improbable circumstances in which an ox could live long enough to kill three times. Rabba suggests that “here we are dealing with a case” of attempted goring: the ox tried to gore people on three occasions, but failed to actually do so. Such an ox would become “forewarned” even though it never actually shed any blood. But Rav Ashi disagrees, arguing that attempted gorings are not legally culpable. Instead, he proposes a scenario in which an ox gored three people and wounded them mortally, but the first two didn’t die until after the third; in this way, the ox would become guilty of three deaths at the same time, as it were.

It falls to Rav Zevid to propose a more convincing explanation. There are, after all, two different kinds of injury an ox can commit—injuries to people and injuries to other animals. Perhaps what we are dealing with is an ox that became “forewarned” because it gored three other oxen—a crime that is not punishable by stoning—and only then gored a person. But this tidy resolution is also unavailable to the rabbis, this time because they have tied their own hands. Earlier in Bava Kamma, they introduced the principle that an ox that is forewarned with regard to one sort of injury is not automatically forewarned for others.

In fact, the Talmud carries this principle to extreme lengths. Earlier, in Bava Kamma 37a, the Mishna distinguished between injuries to other oxen, to human beings, to large animals, and to small animals. It is possible for an ox to be forewarned with regard to one type of victim without becoming forewarned in regard to the others. Thus an ox with a history of goring chickens would not be considered forewarned if one day it gored a person.

Indeed, the distinctions go even further. An ox, the Mishna says, can be “forewarned with regard to Shabbatot”: That is, an ox that has a habit of goring on Shabbat would not be considered forewarned for goring on a weekday. This distinction initially seems to make no sense—surely an ox doesn’t keep track of the calendar, so how could the distinction between Shabbat and weekday be meaningful to it? According to the Jerusalem Talmud, the Koren edition notes the reason is that people wear different clothes on Shabbat, which might confuse the ox, leading it to gore people it perceives as strangers. According to Rashi, the difference has to do with the fact that the ox does not work on Shabbat, which might leave it feeling friskier than usual. Whatever the reason, if an ox that usually gores on Shabbat suddenly takes it into its head to gore on a Monday, its owner would only pay half damages, since it would be considered innocuous for weekdays.

An ox can even be considered “forewarned with regard to alternate oxen,” if it is in the habit of goring every other ox it meets. This distinction in turn raises a whole new series of complications. What if, the Gemara asks, an ox “saw an ox and gored it, and then saw a donkey but did not gore it, and saw a horse and gored it, and then saw a camel and did not gore it, and saw a mule and gored it, and then saw a wild donkey and did not gore it?” What is the relevant distinction here—should we say that the ox is forewarned with regard to oxen, horses, and mules, but innocuous with regard to donkeys, camels, and wild donkeys? Or should we say that it is forewarned with regard to every other large animal it meets? And what if, the Gemara continues, an ox gores a donkey, and then a camel, and then three oxen in a row? Should we count the first three victims together and say that the ox is forewarned with regard to all species? Or do we take the last three victims and say that it is forewarned only with regard to oxen, but not to donkeys and camels, of which it gored only one each?

The idea of limited liability for specific kinds of goring is what derails Rav Zevid’s explanation of the initial dilemma. An ox that gored three oxen would not therefore become forewarned with regard to human beings. So how could any ox ever become forewarned with regard to humans, when it would be stoned to death after its first offense, so that no pattern of hostility to people could be established? Back on Bava Kamma 41a, the Gemara continues to offer suggestions. Perhaps an ox could gore three people who are already mortally injured, so that they were expected to die soon anyway: in this case, the ox would not be executed for its crimes, because it did not kill its victims but only hastened their deaths. Or perhaps, Rav Pappa suggests, we are dealing with an ox that “fled to the marsh” after each of its crimes, hiding from people so that it could not be brought to justice. Or perhaps, says Rav Acha, this is an ox that was convicted on testimony that was later thrown out, so that it was exonerated; and then still later that testimony was vindicated, so that the ox became retroactively guilty.

Clearly, each of these scenarios is more far-fetched than the last. The rabbis are trying to save appearances, to preserve an internally incoherent law, no matter what logical contortions are required. The Gemara never does seem to settle on just one explanation for how an ox could ever become forewarned with regard to people, and the proliferation of arguments from different rabbis is a sign that perhaps no satisfying answer is available. In the attempt to make the biblical law clearer and more useful, the Talmud has instead created a new series of difficulties. This dynamic is one reason the process of interpreting and codifying Jewish law is open-ended: The Talmud is not the end of argument, but the beginning.

***

To read Tablet’s complete archive of Daf Yomi Talmud study, click here.