A creditor or owner? TB Baba Kama 33

Rabbi Yishmael and Rabbi Akiva have a very interesting disagreement on daf TB Baba Kama 33. According to Jewish law based on verses in the Torah, a belligerent ox (a shor muad-שור מועד), an ox that is known to gore habitually, pays full damages. Rabbi Yishmael and Rabbi Akiva disagree how this payment should be viewed.

“Rabbi Yishmael holds that the owner of the dead ox is considered a creditor of the owner of the belligerent ox, and it is money that he is claiming from him, but he has no ownership of the body of the belligerent ox. And Rabbi Akiva holds that they are partners, i.e., from the time the innocuous ox killed the other ox, the owner of the dead ox has a share of ownership in the belligerent ox.” (Sefaria.org translation)

The Gemara cites a Baraita what happens if the owner sanctifies the belligerent ox to the Temple, “Rav Taḥalifa from the West, Eretz Yisrael, taught the following baraita with regard to the belligerent ox before Rabbi Abbahu: If he sold it, it is not sold, but if he consecrated it, it is consecrated.” (Sefaria.org translation) Both Rabbi Yishmael and Rabbi Akiva agree the animal remains sanctified and dedicated to the Temple.

At first glance, one would think that Rabbi Akiva disagrees because now the owner of the dead ox has a share of the live ox which can reach up to 100%. How can somebody dedicate someone else’s ox?! The Gemara explains why this sanctified ox remains sanctified. “The statement that if he consecrated it, it is consecrated, is the halakha even according to Rabbi Akiva, since it is not actually consecrated but is considered so only due to the statement of Rabbi Abbahu. As Rabbi Abbahu says that if one consecrates liened property, although the consecration does not take effect, nevertheless he is required to redeem it, due to a rabbinic decree lest people say that consecrated property can be removed from the ownership of the Temple treasury without redemption. Therefore, the ineffectiveness of the ox’s consecration notwithstanding, he is still required to redeem it, by means of minimal payment, so as not to cause the denigration of Temple property.” (Sefaria.org translation)

On the other hand, one can understand Rabbi Yishmael position that the ox remains sanctified because the ox only represents a monetary lien and the injured party doesn’t own the ox. Nevertheless, Rebbainu Tam in Tosefot (ד"ה אִיכָּא בֵּינַיְיהוּ) raises a problem for Rabbi Yishmael. We have previously learned that three things nullifies a lien. They are: 1, sanctification; 2, freedom of a Canaanite slave; 3, hametz on Passover. Rebbainu Tam comments that this is difficult for Rabbi Yishmael because anything portable that is sanctified nullifies a lien. This ox is considered something portable and its sanctification should nullify the lien. He answers that the lien remains in place because the rabbis wanted to strengthen the lien for the who suffered the damage based on the precedent found later on daf TB Baba Kama 90a.