Q&A: An Ox Deemed Dangerous
An Ox Deemed Dangerous
Question
Hello Rabbi
I don’t really understand the reasoning that a lesser degree of guarding is enough for an ox that has been deemed dangerous.
Best regards
Answer
First of all, this is of course a three-way dispute among the Tannaim. According to the view that the guarding required for an ox deemed dangerous is less than for a non-dangerous ox, it is straightforward. In Jewish law, we rule that half-damages for a non-dangerous ox are a fine. To be exempt from a fine, a higher level of guarding is required than the level that exempts one from payment under the primary law. When they obligate you for less, naturally more is demanded of you in order to be exempt from it. The claim is that in any case they already treated you leniently, so if you want to be exempt entirely, then guard it with superior guarding.
In another formulation (roughly equivalent): if you guarded it only minimally, you are not wicked enough to obligate full damages, but not righteous enough to exempt you entirely (that is, even from half-damages). There is, however, room to analyze this according to the view that the status of tam remains in place within a mu’ad. At first glance, it would follow that in the case of an ox deemed dangerous, if one gave it only minimal guarding, he should not be completely exempt but should be liable for half-damages. But that can be rejected.
Discussion on Answer
You’re right, but the conclusion is mistaken. Minimal guarding is what people normally do, and therefore it is enough for the ox (even one deemed dangerous) to be considered guarded. But in order to be exempt from the fine of half-damages, one must be truly righteous and give it superior guarding.
This is not a question of how much guarding the ox needs, but rather what level of guarding justifies our taking pity on you and exempting you even from the fine.
Seemingly, the distinction is that for a non-dangerous ox, the basis of liability is that your ox caused damage. But for one deemed dangerous, the basis of liability is that you did not guard it.
Correct (although one could analyze the inquiry of Rabbi Avraham of Sochatchov regarding liabilities for damages), but that itself requires explanation.
Because the obligation to guard an ox deemed dangerous is based on reasoning: this ox is prone to damage, so guard it. Therefore the obligation is on the person. But in the case of a non-dangerous ox, half-damages are a fine, which is a scriptural decree saying that one whose ox caused damage must pay.
Apparently the Torah’s intention is that everyone should guard with superior guarding. Therefore, in the case of a non-dangerous ox, we made someone who used only minimal guarding pay; but in the case of one deemed dangerous, the Torah relies on the owner to guard it with superior guarding (“ordinary oxen are presumed to be guarded,” according to this view), both because this ox is prone to damage and because he will pay the full amount of whatever damage the ox causes. In other words, the owner is already deterred.
Okay, I lost you there. For an ox deemed dangerous, someone who guarded it minimally is exempt; that is, halakhically, minimal guarding is enough. So why assume, as a default, that the owner will guard it with superior guarding? I already explained that the Talmud states that the required guarding is what people normally do, meaning minimal guarding. But it seems to me that everything is already clear.
Can it really be imagined that someone who has a non-dangerous ox and guards it with superior guarding would lower the level of guarding after it has been established as dangerous?
Why would he do that? Is it because Jewish law no longer obligates him to pay?! After all, we are dealing with the opinion of Rabbi Yehuda, who holds that “ordinary oxen are presumed to be guarded,” meaning that he relies on the owner to guard his ox even before the Torah imposed damage payments for a non-dangerous ox! If so, your difficulty is not with me but with Rabbi Yehuda.
I think you got completely mixed up here. But everything was explained. Ordinary oxen are presumed to be non-dangerous, but not dangerous. And the presumption of guarding is not only because the owner guards them, but also because there is no concern that they will gore. Okay, we’ve exhausted this.
Where does this concept of half-damages come from? Isn’t the law that the live ox and the dead ox are to be sold and the money divided? Meaning, both of them receive the same amount. In other words, neither one is presumed guilty for the fact that the ox gored, and they divide the extent of the damage equally.
And in the case of an ox deemed dangerous, the fine is that he gives him the live ox and takes the dead ox.
Thank you very much.
So if I understand correctly, a non-dangerous ox doesn’t really require guarding at all, and nevertheless the Sages imposed a fine on it. Therefore, if I want to be exempt from the fine, I need to guard it in a superior way. By contrast, an ox deemed dangerous does require guarding, but the level of guarding demanded of me is lower. My intuition says that the more your property poses a greater danger to the public, the more you should have to guard it. So I would have required superior guarding. Also, the reasoning that a non-dangerous ox does not require guarding, and therefore the obligation is only by way of a fine, is also a bit unclear. An ox is an animal with the potential to cause harm to the public. Does the Rabbi see logic in the idea that an ox requires no guarding at all? It seems to me that nowadays a dog requires superior guarding.