Commento su Esodo 21:36

או נודע means, OR it was not a תם but IT IS KNOWN THAT THE OX WAS WONT TO THRUST to-day yesterday and the day before yesterday — thus you have the three acts of goring required to make it a שלם ישלם שור (Bava Kamma 23b)

OR IF IT BE KNOWN THAT THE OX WAS WONT TO GORE IN TIME PAST, AND ITS OWNER HATH NOT KEPT IT IN, HE SHALL SURELY PAY AN OX FOR AN OX. It is known that if a Tam¹⁹³A Tam is an animal which has not injured, or killed [an animal] more than three times and whose owner has not been warned that it is dangerous and must be guarded. For whatever damages a Tam does, its owner pays only half the loss. The Tam is distinguished from a Muad, an animal which has killed or injured at least four times, and whose owner has been warned that it is dangerous and must be guarded. For whatever damage it does, the owner must pay in full. too is properly guarded by its owner, but through an accident it so happened that it went out and caused damage, the owner is certainly not liable.¹⁹⁴But if so, the question arises why the Torah mentions the guarding of the animal only in the case of the Muad, (see Note above) since the same law applies to a Tam as well. Ramban proceeds to remove this difficulty. Thus the reason why He states only with reference to a Muad,¹⁹³A Tam is an animal which has not injured, or killed [an animal] more than three times and whose owner has not been warned that it is dangerous and must be guarded. For whatever damages a Tam does, its owner pays only half the loss. The Tam is distinguished from a Muad, an animal which has killed or injured at least four times, and whose owner has been warned that it is dangerous and must be guarded. For whatever damage it does, the owner must pay in full. and its owner hath not kept it in, [when the same principle would apply to a Tam as well] is, according to that Sage in the Talmud¹⁹⁵Baba Kamma 45b. See in my Hebrew commentary p. 426, that the reference is to Rabbi Meir. who says that a Muad needs better guarding than a Tam, as follows: Scripture states that if the ox was wont to gore and warning had been given to its owner, and he hath not kept it in and guarded it better in view of its dangerous nature, so that it went out and caused damage, the owner must pay the full damage. According to the opinion of that Sage¹⁹⁶This is the opinion of Rabbi Eliezer ben Yaakov (ibid.). who holds that the degree of guarding necessary for both Tam and Muad¹⁹³A Tam is an animal which has not injured, or killed [an animal] more than three times and whose owner has not been warned that it is dangerous and must be guarded. For whatever damages a Tam does, its owner pays only half the loss. The Tam is distinguished from a Muad, an animal which has killed or injured at least four times, and whose owner has been warned that it is dangerous and must be guarded. For whatever damage it does, the owner must pay in full. is alike, the meaning of the verse is as follows: If it be known to the owner that the ox was wont to gore and now too [i.e., at the fourth time] he hath not kept it in, he is liable to pay the full damage on account of his grave negligence.

ולא ישמרנו, and he did not supervise it adequately, etc. The correct interpretation of this verse follows what we learned in Baba Kama 46. Rabbi Eliezer is on record that the only adequate supervision of an aggressive ox such as the one mentioned in our verse is the knife, i.e. it has to be slaughtered. Rabbah elaborated: "why does the Torah speak of 'if he will not guard it,' because there is no longer any point in guarding it." If the ox had to be slaughtered what is the point of speaking of supervision?" Abbaye answered Rabbah that if one were to accept Rabbah's argument what is the meaning of "he did not cover it" in verse 33? [clearly if the pit had been covered nobody would have fallen into it. Ed.] So far the Talmud. I believe that Rabbah's point is well taken. There is obviously a difference between the situation involving the pit and that of the ox which had gored repeatedly. In the case of the pit, the Torah uses the future tense, it speaks of an event which has not happened as yet; Also the description of the victims is worded in the future. In the case of the ox which had gored repeatedly the Torah commences by telling us of the past history of that ox. The Torah suddenly switches to the future tense by saying ולא ישמרנו. Actually, the Torah should have written ולא שמרו, "and he did not guard it." Rabbah did not bother to answer Abbaye in the Talmud. According to the view of Rabbi Yehudah that even relatively minor supervision of such an ox is adequate in order to exonerate the owner if the ox gored again, the Torah must be understood thus: ולא ישמרנו, "if he did not guard it at all." It is worthwile to study the Talmud at the end of the chapter on folio 46.