Komentarz do Wyjścia 21:29

מתמל שלשם [BUT IF THE OX HAS BEEN WONT TO THRUST] YESTERDAY AND BEFORE YESTERDAY — Here you have including the present occasion the three times an ox must gore before it can be declared a מועד (Bava Kamma 23b).‎

AND ITS OWNER SHALL BE PUT TO DEATH. Our Rabbis have received by Tradition¹⁶⁷Mechilta here on the Verse. that this death means by the hand of Heaven. Similar cases are these verses: and the common man that draweth nigh shall be put to death;¹⁶⁸Numbers 18:7. Punishment for a non-priest who performs the Divine service in the Sanctuary is death by the hand of Heaven (Sanhedrin 83 a). and they die therein, if they profane it.¹⁶⁹Leviticus 22:9. This is with reference to an unclean priest who ate clean heave-offering [which is forbidden to him as long as he remains in his state of uncleanness], and the punishment is death by the hand of Heaven (Sanhedrin 83 a).
I have noticed that where the Torah speaks of those liable to be put to death by the court, it does not mention just yumoth (he shall be put to death), but always says, moth yumoth (he shall surely be put to death). Do not object to this rule from the verse, and he that killeth a man ‘yumoth’ (shall be put to death),¹⁷⁰Leviticus 24:21. In this case his punishment is death by the court, and yet it says only yumoth! or from the verse about the Sabbath,¹⁷¹Of the Sabbath it is said, Whosoever doeth any work therein ‘yumoth’ (shall be put to death) (further 35:2), and his punishment is death by the court! or a prophet who misleads,¹⁷²And that prophet… ‘yumoth’ (shall be put to death) (Deuteronomy 13:6), and there too his punishment is by the court (Sanhedrin 84 a). for in each of these cases He has already clearly explained elsewhere about them [that they are liable to death by the court, by using the phrase: moth yumoth].¹⁷³In the case of smiting a man — see above Verse 12; for the Sabbath, see further, 31:14. For a prophet who misleads, see Deuteronomy 13:10: ki harog tahargenu (for thou shall surely kill him).
Now I do not know the reason for Onkelos’ rendering yumoth as yithk’teil [“he shall be killed”, which indicates that his death is to be by the court, instead of by the hand of Heaven]. Perhaps his intention is to state that the owner, [who had been previously warned that his ox had gored three times, but still did not guard it, so that it went out and killed a man or woman], deserves to be put to death, but is instead made liable to the payment of a ransom. Or perhaps Onkelos means to explain that that which Scripture states, and its owner also shall be put to death means that the owner will perish in a similar manner to that by which the gored person was killed, for his day shall come to die, or he shall go down into battle, and be swept away;¹⁷⁴I Samuel 26:10. the Eternal will not hold him guiltless.¹⁷⁵Above, 20:7. Thus Onkelos wanted to teach us that the owner of the ox is liable, according to the view of Heaven, to die by the hand of a killer, and not by a natural death, something like it is said, and I will kill you with the sword.¹⁷⁶Further, 22:23. In the verse, and the common man that draweth nigh shall be put to death,¹⁶⁸Numbers 18:7. Punishment for a non-priest who performs the Divine service in the Sanctuary is death by the hand of Heaven (Sanhedrin 83 a). Onkelos also translated yumoth as yithk’teil [“he shall be killed,” indicating that his death is to be by the court], because he agrees with the opinion of Rabbi Akiba who said that a non-priest who performed the Divine service in the Sanctuary is put to death by strangulation.¹⁷⁷Sanhedrin 84a. The Sages, however, are of the opinion that his death is by the hand of Heaven.

וגם בעליו יומת. A reference to judgment by heaven which will be exacted from the guilty party if we cannot convict him due to lack of witnesses.

וגם בעליו יומת, by heavenly forces as opposed to by human tribunal. If the owner did make restitution of monetary kind he is not guilty vis a vis heaven either.

וגם בעליו יומת, “also its owners shall be executed.” This execution would be at the hands of heaven, not by human tribunal. [clearly, the owner could not have been warned of what his ox was going to do and that he would be executed if he did not prevent it so that legal proceedings against him would result in a death sentence. Ed] Nachmanides writes that he cannot follow the translation of Onkelos who takes the text decreeing execution of the ox’s owner literally. He speculates that possibly Onkelos meant that the owner deserves to be executed. Instead, the Torah, in this instance, provided monetary compensation to be paid by the owner. Alternately, what Onkelos meant to say was that this owner, when the day would come when he was meant to die, would die a violent death instead of dying from natural causes. In other words, by his negligent conduct with this aggressive ox he made himself liable to G’d’s direct intervention in causing his death.

והמית איש או אשה, “and it kills a man or a woman, etc. “ According to Pessikta Zutrata on our verse, these words are redundant in connection with the immediate subject at hand. They are therefore available to serve as a basic premise that just as there is no difference in the treatment of man and woman if either has been gored by an ox, neither does Jewish law make a distinction between men and women in other instances of woman sustaining death or injury. Although nowadays (since the Jews were exiled to Babylon) we do not have the authority to impose financial penalties, if someone who was wronged (injured) compensated himself by seizing property belonging to the guilty party our local courts do not reverse what the injured party has done.
Our sages in Baba Kama 30 relate a list of anecdotes describing how careful various Talmudic scholars were to ensure that their property (inert) could not accidentally become the cause of injuring people. They buried plowshares 3 feet underground, were very careful that discarded shards should not pose a hazard to anyone, etc. Deut. 22,8 (in connection with the fence on one’s roof) states “in order that you do not place blood in your house,” as the basic warning not to become guilty of damage or injury through inadvertence. A certain individual was observed throwing stones which he did not want anymore from his house into the public domain, the street. An old man accosted this individual challenging him why he threw refuse from a place which was his own to a place which was not. The offender replied sarcastically: After some time had passed the offending individual found himself in financial straits and had to sell his house. He tripped over the stones which he had thrown out sometime earlier. He then remembered the words of the old man who had scolded him at the time and now he acknowledged that the reproof had been in place. The story is an illustration of what Solomon said in Kohelet 12,1: “remember your Creator in your youth.”

Making. . . three gorings. [They are:] the goring of yesterday, of the day before, and of today. (Nachalas Yaakov) This teaches that he is not liable until the fourth goring.

והועד בבעליו, and its owner(s) had been warned, etc. The reason the Torah speaks of "its owners" (pl) is that in the event the ox in question is owned jointly by several people, all are guilty of the death penalty; the situation is not comparable to one where two people combined to administer a lethal blow to another. In the latter case both are not culpable before a human tribunal (compare Baba Kama 26). The reason is that there they are only free from a human tribunal, whereas both are guilty in the eyes of Heaven. In our case there is no death penalty by a human court even if the animal belongs to a single owner. When the Torah speaks about the owner יומת, it refers to death at the hands of Heaven. All owners have to pay the required amount of compensation, however.

V. 29. נַגָח: Substantivform wie חַטָ גַנָב, die den Charakter, d. h. eine zur Natur gewordene Eigentümlichkeit bezeichnet. So auch hier: ein Ochse, dem das Stoßen zur Natur geworden. Diese abnorme Eigentümlichkeit wird als "fest" gewordene Natur (חזקה) durch dreimalige Wiederholung an drei Tagen konstatiert. Wenn רבא (B. K. 23 b) im Prinzipe nicht der rezipierten Halacha entgegensteht, daß der נַגָח-Charakter mit dreimaliger Tötung erlangt wird und erst der vierte Stoß dem Eigentümer zur Last fällt, er vielmehr das Prinzip selbst an der Hand unseres Textes also darstellt: תמול מתמול חד שלשום תרי ולא ישמרנו האידנא חייב, sich aber dabei die Schwierigkeit erhebt, den vierten Stoß in unserm Texte nachzuweisen: so dürfte רבא vielleicht das ואם שור נגח הוא des 29. V. in Verbindung mit dem in V. 28 besprochenen Falle, und zwar also gefasst haben: wenn aber der Ochse, der eben gestoßen, damit sich als ein שור נגח erwiesen, indem er bereits auch gestern und vorgestern, also schon zweimal vor dem jetzigen Stoß, gestoßen hatte, und von nun an der Eigentümer ihn nicht hütet, so ist er beim nächsten Stoß zahlungspflichtig. In diesem Sinne haben wir auch übersetzt. Und ebenso wäre V. 36 im Sinne רבא's zu verstehen. Die Möglichkeit aber, dass ein Ochse, der ja bereits nach der ersten Tötung eines Menschen hingerichtet werden muss, zum dritten und vierten Stoße gelangen kann, ist (B. K. 41 a) verschiedentlich nachgewiesen, z. B. wenn er die ersten Male wiederholt entlaufen war usw.

ואם שור נגח הוא, “but if that ox had had a history of goring people, (and its owner had not taken proper precautions);“ The Talmud, tractate Baba Kamma folio 23, relates a dispute between two scholars, Abbaye and Rava whether the term נגח applies to an ox that already gored twice or whether even after having gored once, that animal belongs to the category of being potential a killer, and its owner being guilty of not having protected potential victims properly. The subject of their dispute is the meaning of the word תמול, usually understood to mean “yesterday.” According to the former scholar, even a single incident of goring suffices for the ox to be categorised as dangerous, and the prefix מ i.e. מתמול, would refer to the second offense by that ox, so that the words ולא ישמרנו, “and its owner did not watch it adequately,” would make him liable to stoning only the fourth time whereas according to the second scholar, basing himself on the word שלשום, “day before yesterday,” that ox’s status did not change from harmless to dangerous until after it had gored three times. According to Rava, the words ולא ישמרנו, would then mean that only after a third such occurrence did this ox change its category, and its owner became guilty on an additional count According to the Talmud in tractate Baba batra, folio 28, such an ox is subject to stoning only after it has gored the fourth time. seems therefore that Abaye found four sources in the Torah’s text supporting his view whereas Rava found only three. If you were to ask what difference this makes, [after all we do not decide questions of halachah on the written text of the Torah, but use it only as broad hints, Ed.] Rabbi Ezra hanavi claims that there is a difference. The difference would be if the fourth goring had occurred on the same day as the third goring. According to Abbaye, if the last goring would have occurred on the same day as the previous one, the owner as well as his ox would not be held liable for the additional negligence, as the owner on a day when his ox was bad-tempered had not yet had time to place him under secure restraint.

וגם בעליו יומת, “and also its owner is guilty of the death penalty by execution.” According to the plain meaning of the text he should be executed in practice, seeing that he was aware of allowing a dangerous animal to be on the loose, and he took no precautions.

והועד בבעליו AND IT HATH BEEN TESTIFIED TO HIS OWNER — הועד (from the root עוד) is an expression for warning through witnesses (Bava Kamma 24a), as in, (Genesis 43:3) “the man hath solemnly forewarned (הָעֵד הַעִד) us”.

וגם בעליו יומת, “and also its owner shall die.” The word יומת here does not refer to execution of the owner by a human tribunal. Our sages, (Sanhedrin 15) in interpreting the word conclude that a man is executed for murder of a human being not for the killing committed by his ox. The penalty referred to in our verse is known as מיתה בידי שמים, “death at the hand of heaven,” i.e. premature death of the owner in question. The expression used for the death penalty of the guilty owner is the same as in Numbers 18,7 “and the stranger (non-priest) who enters holy precincts will die.” Sanhedrin 83 makes clear that what is meant is death at the hands of G’d.

Kill him with biting. . . [Rashi knows this] because “and it kills” is a superfluous phrase. For it already said (v. 28), “If an ox gores a man. . . and he dies,” and immediately afterwards the verse states, “But if the ox had gored. . .” Thus, the superfluous “and it kills” comes to include any method of killing that is similar to [goring with] the horn. (Kitzur Mizrachi) The reason why Rashi did not mention the method of crouching [on the victim, although the Gemara mentions it] is because Rashi included it in “shoving.”

הועד בבעליו. Die Bedeutung העיד, von עוד, Dauer: als zeugen und warnen haben wir bereits (Bereschit 8, 22) erläutert. Hier fallen beide Bedeutungen zusammen. Indem dem Eigentümer die dreimal wiederholten Stöße seines Tieres und damit der nunmehrige Charakter desselben bezeugt worden, ward er zugleich gewarnt, d.h. es ward ihm die Pflicht gegenwärtig gemacht, denselben entsprechend zu hüten. Es bleibt (B. K. 24 a) zweifelhaft, ob שלשה ימים דקתני לייעודי תורא או לייעודי גברא, d. h. ob es genügt, dass dem Eigentümer die drei Stöße und damit der gefährliche Charakter seines Tieres auf einmal bezeugt worden, oder der Eigentümer dreimal gewarnt sein muss. Wir haben in ersterm Sinne übersetzt: und es ist dies nun seinem Eigentümer bezeugt worden. Nach der zweiten Annahme hieße es: und es ist dies seinem Eigentümer (jedesmal) bezeugt worden. —

והמית איש וגו׳ BUT HE HATH PUT TO DEATH A MAN [OR WOMAN] — Since it states, (v. 28) “If an ox gore (יגח) [a man or a woman, that he die]” I might say that I have only the law dealing with the case that it kills by pushing him with the horn (the root נגח being mainly used of thrusting with the horn, cf. e .g., Deuteronomy 33:17) but whence can the law be derived that it applies also to the case where it kills by biting, thrusting, or kicking? Scripture therefore states “he hath put to death [a man or a woman]” thus intimating that so long as death is caused by the animal it is liable to stoning.

השור יסקל וגם בעליו יומת, beide zusammen haben sie eigentlich den Tod des Menschen bewirkt, der Eigentümer, als die Intelligenz, die also die Kraftäußerung des ihr unterstehenden, lebendigen und leblosen Besitzes zu überwachen und zu vertreten hat wie die Kraftäußerungen ihres eigenen Leibes. Daher: כמיתת הבעלים כך מיתת השור: es gelten für die Verurteilung und Hinrichtung des Tieres ganz die Bestimmungen und die Prozedur, wie bei der eventuellen Hinrichtung des Herrn; das Tier ist nur zu verurteilen, wenn die Tötung unter Umständen geschehen, die, wenn sie durch einen Menschen verübt, dessen Todesschuld herbeigeführt hätten (B. K. 44 b). Ebenso geschieht die Verurteilung nur wie beim Menschen durch einen Gerichtshof von dreiundzwanzig (Sanhedrin 2 a). Dieses letztere findet jedoch auch statt, wenn das Tier herrenlos, und dürfte dem vielmehr das Motiv zu Grunde liegen: der Hinrichtung des Tieres die oben angedeutete sittliche Idee zu erhalten und sie nicht als etwa polizeiliche Maßregel zur Verhütung fernern Schadens erscheinen zu lassen.

וגם בעליו יומת AND HIS OWNER ALSO SHALL BE PUT TO DEATH by a visitation of God. You might perhaps think he shall be punished by human agency (the judges)! Scripture, however, states, (Numbers 35:21) “he that smote him (a human being) shall surely be put to death; for he is a murderer” — the force of these last words is to intimate that for a murder committed by himself you shall put him to death (i. e. he suffers death by human agency as is the law regarding a murderer), but you shall not put him to death on account of a murder committed by his ox; this must be left to God (Sanhedrin 15b; cf. also Mekhilta d'Rabbi Yishmael 21:29:8).

יומת: er hat vor Gott das Leben verwirkt; allein das menschliche Gericht hat ihm nur, wie im folgenden Verse ausgesprochen, ein Sühnegeld aufzulegen.