Commento su Esodo 21:31

או בן ינח WHETHER HE HAVE THRUST A SON — a son who is a minor;

O’ (OR) HE HAVE GORED A SON, OR HAVE GORED A DAUGHTER ACCORDING TO THIS JUDGMENT SHALL IT BE DONE UNTO HIM. Scripture uses the word o (‘or’ he have gored a son), because it adds to a phrase mentioned above, the meaning of the whole phrase thus being: “and he hath put to death a man or a woman,¹⁷⁹Above, Verse 29. or he have gored a son, or have gored a daughter, one ordinance shall be for them.” Some scholars¹⁸⁰Rashi in Leviticus 4:23, and R’dak in Sefer Hashorashim, root o. say that the word o comes in the place of im (if). Similarly: ‘o’ (if) it be the carcass of an unclean beast;¹⁸¹Leviticus 5:2. ‘o’ (if) I had dealt falsely against mine own life;¹⁸²II Samuel 18:13. ‘o’ (if) it be known that the ox was wont to gore.¹⁸³Further, Verse 36. There are many such cases, in the opinion of these scholars.¹⁸⁰Rashi in Leviticus 4:23, and R’dak in Sefer Hashorashim, root o. But all these proofs are false witnesses; you will understand them all in their context.
According to our Rabbis,¹⁸⁴Baba Kamma 44a. Scripture had to detail the ordinance [in the case of an ox goring] minors, because it found it necessary to say above, And if an ox gore a man or a woman,¹⁸⁵Verse 28. — in order to teach us that in all laws of the Torah concerning damages G-d has treated woman equally to man — thus I might have thought that one is only liable in the case of a grown man or woman; therefore Scripture says, or he have gored a son, to make him liable for the death of minors as for that of adults. The same method was followed by Scripture in the verse, And he that smiteth any man mortally shall surely be put to death,¹⁸⁶Leviticus 24:17. as Rashi explained there.¹⁸⁷“Because it is said, He that smiteth a man, so that he dieth, shall surely be put to death (above Verse 12), I know only about a man. How do I know that the same applies to a woman and to a minor? Scripture therefore says, kol nefesh adam (and he that smiteth ‘any man’) — [literally: ‘the soul of any human being’]” (Rashi, Leviticus 24:17).
In line with the plain meaning of Scripture, [the ordinance concerning an ox goring minors is stated] because an ox that kills a grown-up person is extremely vicious, as a bear robbed of her cubs¹⁸⁸II Samuel 17:8. in the wilderness, thus if warning hath been given to its owner, and he hath not kept it in,¹⁷⁹Above, Verse 29. he has committed a grave transgression, and deserves to be liable to death or to pay a ransom [for the redemption of his life]; but an ox that kills minors is not so vicious, for most oxen are not afraid of them, and one might therefore think that their owners are not liable [to the same punishment], therefore Scripture states that according to this judgment shall it be done unto him.

או בן יגח או בת יגח, “whether it gores a boy or it gores a girl, etc.” The Torah considers the death through an owner’s negligence of a minor as just as serious as the death of an adult. The reason why we needed a specific verse for this legislation to be spelled out is that when an ox kills a man it is as if a bear enraged through the loss of one of its young goes on a rampage, i.e. disregarding danger to itself. On the other hand, I might have thought that when an ox gores a minor this was not such a serious departure from its normally tame behaviour that the owner forthwith has to guard it with all the means at his disposal. The Torah therefore informs us that any animal which kills any human being, even a minor, has changed its status to becoming a שור מועד, an aggressive ox, with all that this implies for the precautions its owner has to take to neutralize it as a source of danger.

או בן יגח או בת יגח, “whether it gores a boy or a girl, etc.” Seeing that in verse 28 the paragraph commenced with the words “if an ox gore a man or a woman,” the Torah adds that even if the victim of such a goring was a minor the same law applies.

He is liable for a minor. You might ask: If this is so, why did it need to say (v. 28): “a man or a woman”? [Since he is liable for a minor, surely he is liable for an adult!] An answer is: Had it not said “a man or a woman,” I might think that the “son or daughter” of our verse means an adult son or daughter. Alternatively, [I might have applied the rule that] a fortiori reasoning is not a valid basis for a punishment, [thus we cannot learn from a law pertaining to minors and apply it to adults].

אם בן יגח או בת, “if it gores a son or a daughter;” it is most unusual for the Torah to spell out separately that the victims are either man or woman, or son or daughter; (Compare verse 28). Why did it do so here? The reason is that the owner of the ox could have argued that if the father of the child who had been killed had taken care of hjs son or daughter these would not have been where the animal could have attacked them with impunity. The Torah had to inform us that such an excuse by the owner of the ox which had killed is absolutely irrelevant. A different explanation: when the Torah speaks of free people, the status of minors and adults is exactly the same. (Talmud Baba kamma folio 43) when the victim of this ox was either a child of a slave who was still a minor, the owner of the ox is not liable.

או בת יגח OR HAVE THRUST A DAUGHTER, who is a minor. Since it states, (v. 29) “and hath put to death a man or a woman”, one might think that the owner is liable only for the death of adult persons, Scripture therefore states, “whether he have thrust a son etc.” to make him liable for the death of minors equally as for that of adults (Mekhilta d'Rabbi Yishmael 21:31:1).