Two passages in Exodus treat of an ox doing harm: the first of harm to a person (xxi. 28-32); the second to the ox of another owner (ib. 35-36). The verb used in the first passage is "nagaḥ" (to gore); that in the second, "nagaf" (to strike or hurt). But, according to the tradition, the rules laid down in either passage apply to goring, striking with the body, biting, kicking, and lying on. These rules are also extended to animals other than oxen, either injuring or injured (B. Ḳ. i. 4); and, while the texts contemplate killing only, the rules apply to lesser injuries also."Tam" and "Mu'ad."
In each of these passages a distinction is made between the ox which has not given evidence of its vicious character and one whose master has been forewarned in this regard. The former is known in the Mishnah as "tam" (lit. "innocent," "harmless"); the latter is called "mu'ad" (lit. "testified"). An injury committed by an innocent ox is deemed a kind of accident; while the master who is forewarned, but does not watch his beast, is liable for full damage, and, in case of the death of a human being, to a mulct or forfeiture. To render an ox mu'ad, two witnesses must testify in court, in the presence of its owner, that the ox has on three separate days acted viciously. Acting thus to his kind or to other domestic animals does not render him mu'ad as to injury to persons; nor vice versa (ib. ii. 4).Punishment.
An animal that kills a human being must be stoned to death: its flesh may not be eaten. But it should first be tried by a criminal court of twenty-three judges; for the owner, who is also morally guilty of homicide, can be tried only in such a court. Even a lion, bear, or wolf that kills a person must be so tried; only a serpent should be killed by the first comer (Sanh. i. 4). "The ox of the stadium [arena] is not stoned: it is not he that gores; he is made to gore" (B. Ḳ. 39a).
Concerning the owner of a mu'ad the text says: "and his owner, also, shall be put to death; if there be laid upon him a ransom, then he shall give for the redemption of his life," etc. According to the rabbinic interpretation, the judges have no discretion as to putting to death or placing a ransom: they always place the ransom, which goes to the heirs of the decedent. But whose life is to be estimated? R. Ishmael says, that of the person killed; R. Akiba more logically says, that of the guilty owner, who redeems himself from death (ib. 40a). Hence Maimonides draws the conclusion that where the ox belongs to two owners jointly, both of whom have been warned, each of them has to redeem himself in the full amount. This amount is fixed according to age and sex (Lev. xxvii.; see Estimate).
When the person killed is a (Canaanite) bondman or bondwoman, the text fixes the mulct, payable to the owner, at thirty shekels, without regard to the value of the slave (Ex. xxi. 32; B. Ḳ. iv. 5).
While the text speaks only of the ox that kills either man or beast, the animal may strike and wound without killing its victim, and thus inflict a lesser injury. In such cases the owner of a mu'ad pays full damage; the owner of a tam half damage, as will be shown hereafter.
When a human being is hurt the owner of the oxpays only for damage proper, or diminution in value: he does not pay for pain, stoppage of work, cost of cure, or shame, as would one guilty of Assault and Battery. And the words of the text, "He shall surely pay ox for ox, and the dead shall be his own," are construed contrary to their apparent meaning; the owner of the killed ox keeps the carcass, and the owner of the goring ox pays in money the difference between the value of the live animal and of the carcass, just as he pays for a hurt not resulting in death. This rule naturally followed when restoration in kind fell into disuse and the courts gave judgments for money in all cases.Half Compensation.
Where one man's tam kills the ox of another, the text says, "they shall sell the living ox and divide the price of it, and the dead also they shall divide." Should the goring and the gored ox be of equal value, this would amount to making good half the damage; and, in the words of the Mishnah, "this is the ox of the Torah." Nothing is said in the text about any responsibility of the owner beyond the value of the offending beast. Hence the sages drew the conclusion that the two purposes of the Torah were: (1) to fix the payment at half the damage done, and (2) to declare the lack of responsibility beyond the value of that beast, or, as they put it, beyond "half damage from its body," the latter element answering to the "pauperies" of the Roman law.
The penalty of "half the damage done from the body" must be paid whether the injury be done by an ox or any other animal; whether by goring or in any other way except by "foot or eating tooth"; whether to a man (short of death) or to a beast or other property; and whether the injured animal die or not; the owner of the offending animal, however, is then free from all further liability. And where the oxen of two men injure each other, the harm or diminution of value to each is appraised, and the owner whose ox did the greater harm pays half of the difference, to the extent of the living security (B. Ḳ. iii. 8). If the offending ox is in the keeping of a bailee, it may nevertheless be taken for the damage done, and the owner then has recourse to the bailee.
For the case of doubt as to which of several oxen has committed an injury, see Burden of Proof.
- Maimonides, Yad, Nizḳe Mamon, iv.-xi.