Q&A: An Innocuous Ox and Half-Damages
An Innocuous Ox and Half-Damages
Question
The Brisker Rav, in Bava Kamma, explains the Talmud’s doubt whether the subcategories are like their primary categories or not as follows: there are exemptions that the Torah established whose point is not a deficiency in the status of the damager, but rather a scriptural decree. According to this, the Talmud was in doubt whether a subcategory has the same status as the primary category with respect to receiving the exemption or not. The commentators ask (Rabbi Shmuel, Rabbi Shmuel Rozovsky Leibovitz, and others): how can one say this regarding half-damages according to the view that half-damages are a fine? After all, there is no capacity for liability there at all such that we could say that in the subcategory there would be full damages. My question is whether it is possible to explain that the law of half-damages is not a result of the fine, but is an independent law of exemption, like produce hidden in a fire and the like. And even more so, whether one can say that an innocuous ox is an ox that by its nature is innocuous (as is implied somewhat by Maimonides’ language), and therefore even if it gored three times its law should really still be half-damages, except that if it gored three times the Torah canceled the exemption. In that case it is not called forewarned in its halakhic definition; rather, the law of a forewarned ox takes effect on it. If so, it is obvious that half-damages are not connected to the fine, because even where it is not presumed guarded, its definition is still innocuous and the exemption of half-damages ought to apply. And if we say this, in addition to saying that the fine is in the amount that it would have paid had there been monetary liability from the outset, then just as one could discuss whether in a subcategory there would not be the exemption of half-damages, so too one could discuss whether in a subcategory the fine would be full damages, subject to what it would have been had it been a monetary payment. I would be glad to hear the Rabbi’s view on this.
Answer
According to the view that half-damages are a fine, half-damages really are not an exemption. So what is the question? A subcategory of Goring that is not like its primary category would be completely exempt.
Discussion on Answer
I don’t have it in front of me right now. But simply speaking, that is not correct. True, one could say that an innocuous ox has an exemption from all the damage, and on top of that there is a liability of a fine for half-damages, and then even an innocuous ox has an exemption. But in that case, for a subcategory that is not like it, there should have been liability for full damages. Beyond that, from the reasoning that ordinary oxen are presumed guarded, it emerges that this is not an exemption (although one could push back with difficulty, on the side that what creates liability is the very fact that your property caused damage, and not negligence in guarding it).
I completely accept what you’re saying. Rather, what I meant was that with an innocuous ox we would say there is an exemption of half-damages even if, hypothetically, the ox is presumed guarded, since the definition of an innocuous ox is according to its natural state, in Maimonides’ language, and by its natural state it is innocuous even if it gores 20 times; it is just that after three times the law of a forewarned ox takes effect on it. According to this, the half-damages are not because the payment is a fine, but because if this were a monetary obligation, the payment here would have been half-damages, and therefore the fine payment is equal to that as well. And in a subcategory, where there is no exemption of half-damages, the fine too would be full damages.
By the way, in my response above I made a mistake: the Brisker Rav wrote that if it is not like it, it would be full damages, and that fits with the forced interpretation, in your view, that you mentioned in the previous response. My apologies.
I don’t understand what you’re writing, but as I said, I don’t see any need for this at all. There is no question here, so there is no need for answers.
The need for all this is to resolve the Brisker Rav’s view. I’ll try to explain one more time, and I apologize for the trouble. If we say that the half-damages are not because the payment is a fine, but are an independent exemption even if the payment would have been monetary, only that the fine is in the amount of what should have been had this been a monetary payment, then it is possible for the subcategory to be full damages even if the payment is a fine, since in the subcategory there is no exemption of half-damages. And I tried to anchor this in a way that would make it necessary: if we say that the definition of an innocuous ox is that it is innocuous by its natural state and by the way of all members of its species, then the fact that there is an exemption of half-damages is not because it itself is not accustomed to gore, but because by the usual course of its nature it does not gore. Then it necessarily follows that the half-damages are not because of the presumption of being guarded, but are a side exemption. Thank you in advance.
I’m sorry, but I don’t understand what you’re trying to resolve. What did the Brisker Rav say, what is difficult about it, and then explain what your suggestion is. I explained why even if the payment is a fine, the subcategory would be full damages. So what is the difficulty?
The Brisker Rav explained his position there to mean that if their subcategories are not like them, it would be liable for half-damages; see there.