With today’s daf TB Ketubot 41 we finish the third chapter of our massekhet. When it comes to damages, the Gemara delineates two kinds of payments. The first is mammon (מָמוֹן), compensatory damages. The second payment is a kenas (קְנָס), a fine. A fine can only be levied by a court when two witnesses testify against the defendant. When there are no witnesses and the defendant admits to the crime, he has to pay the compensatory damages, but not the fine. After citing some case law, the Mishnah provides a general principle. “This is the principle: Anyone who pays more than what he damaged, the payments are fines and therefore he does not pay based on his own admission. He pays only based on the testimony of others.” (Sefaria.org translation)
Before understanding the disagreement between Rav Pappa and Rav Huna, son of Rav Yehoshua, we need some background information. A standard ox (shor tam-שׁוֹר תָּם) has no history of causing any damages. If this standard ox gores somebody else’s ox, the owner only has to pay half the damages (hatzi hanezek- חָצִי הַנֶזק) If this ox gores three times, it becomes a forewarned ox (shor mu’ad-שׁוֹר מוּעָד). Since the owner of a forewarned ox should have guarded this animal from goring, he is obligated to pay full damages. When it comes to a standard ox, is hatzi hanezek considered compensatory damages or is it a fine?
“Rav Pappa said: Half the damage is considered a payment of money (mammon, compensatory damages-gg), as he maintains: Standard oxen do not exist in the presumptive status of safety, and therefore are likely to cause damage. And by right, the owner should pay the entire damage caused by his animal, and it is the Merciful One that has compassion on him, as his ox is not yet forewarned until it has gored a person or an animal three times. Fundamentally, the payment is for damage that the animal caused. Rav Huna, son of Rav Yehoshua, said that half the damage is payment of a fine, as he maintains: Standard oxen exist in the presumptive status of safety, and are not dangerous. And by right, the owner should not pay at all, as the ox goring could not have been anticipated, and therefore the owner bears no responsibility. And it is the Merciful One that penalized him so that he would guard his ox. The sum that he pays is a fine.” (Sefaria.org translation)
Despite all the mishnayot the Gemara brings to litigate this disagreement proves that Rav Pappa’s position is the sounder of the two, the ultimate conclusion is that the halakha is according to Rav Huna, son of Rav Yehoshua. Hatzi nezek is a fine.
The chapter ends with a statement which supports the Jewish view of gun safety laws. “Rabbi Natan says: From where is it derived that a person may not raise a vicious dog[1] in his house, and may not place an unsteady ladder in his house? It is as it is stated: “And you shall make a parapet for your roof that you shall not place blood in your house” (Deuteronomy 22:8). It is prohibited to leave a potentially dangerous object in one’s house, and one who refuses to remove it is excommunicated.” (Sefaria.org translation)
There are too many cases where
loaded guns were in easy access of children. Children playing around with these
guns shoot and kill their playmates.[2] As many as 1.7 million
American children live in homes with an unlocked, loaded gun, according to the
Brady Campaign to Prevent Gun Violence. (https://www.thejournal.ie/toddlers-shot-michigan-3621108-Sep2017/)
Jewish law would dictate these adults must keep these guns away from their
children and children visiting their homes. The guns should be kept in a locked
box. Guns and ammunition should be stored separately.by doing so we will
fulfill the commandment “you shall not place blood in your house.”
[1] A
dog (or a cat) who causes unusual damage only has to pay half damages, a fine. Today’s
Gemara gives the example of a dog strangled and ate a sheep.
[2] see
the following examples: https://www.thejournal.ie/toddlers-shot-michigan-3621108-Sep2017/;
https://abcnews.go.com/US/year-shot-playmate-critical-condition/story?id=18913811; https://blog.timesunion.com/crime/boy-will-face-family-court-charge-over-death-of-playmate/6276/; https://blog.timesunion.com/crime/boy-will-face-family-court-charge-over-death-of-playmate/6276/;
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