Halakhah sa Exodo 21:35: Shulchan Arukh, Choshen Mishpat, Sefer HaChinukh & Mishneh Torah, Positive Mitzvot

One against whom there is a monetary claim regarding aught of which he [the defendant] is [illegally] the possessor, is forbidden to seek means to evade [the claim] in order that the person concerned [the plaintiff] should consent to make a settlement with him and forgo the balance [of the claim].²²Terumath ha-Deshen s. 30 Cf. B.K. 40a-b: ‘It has been stated: If a man borrowed an ox on the supposition that it is a Tam but was later discovered to have already been formally declared a Mu‘ad (then if it repeated to gore) the owner pays one half of the damages and the borrower pays (the other) half of the damages. But why should the borrower not contend against the owner, I borrowed an ox, I did not borrow a lion? — Rab said: We deal here with a case where the borrower knew that the ox was a gorer (although he knew not that the ox was formally declared a Mu‘ad). Let him therefore plead: I borrowed an ox in the state of Tam, but I did not borrow an ox that was formally declared a Mu‘ad? — Because the owner might retort: In any case, even if the ox had been a Tam, you would have to pay half-damages? Now, too, you must go and pay half-damages. Let him (the borrower) still contend against him: Were the ox in the state of Tam, damages would have to be paid out of its body (the indemnity would be collected from a sale of the animal and not from my best possessions. , Ex. XXI, 35) ? — Because the owner might retort: In any case, would you not have to compensate me (the full value of) the ox? Let him (the borrower), however, plead: Had the ox been a Tam, I would have admitted (the act of goring) and be exempt from making payment (because he who confesses an act with which a fine is connected, — in this case the half-damages which may be considered as of a penal nature — is exempt from the fine). And even according to the one who maintains (v. B.K. 15a) that half-damages is a civil liability (and by making a confession he would not be exempt), the borrower might still contend: Were the ox in a state of Tam, I would have caused it to flee to the meadow (and would have thus avoided payment out of its body which is the law in the case of Tam. , Ex. ibid.) ? — We deal here with a case where the Court of Law took steps first and seized the ox. If so, why should the owner pay half-damages? Let him contend: You were the cause of making my ox fall into the hands of one with whom I cannot go to law? — Because the borrower might argue against him: Were I even to have returned it to you, would they not have taken it from you? But let the owner say to the borrower: Were you to have returned it to me, I would have caused it to flee to the meadow? — Because the borrower might retort: In any case, would the damages not have been paid from the best of your possessions (since the ox was designated Mu‘ad while still in the possession of the owner) ? — This would be a valid argument (by the borrower) where the owner possessed property, but what can be said where the owner possessed no property? — Because the borrower can say to the owner: As well as I am obliged to pay you (i.e., to restore the ox), I am obliged to pay him (the plaintiff who is your creditor). This follows from (the dictum of) R. Nathan. For it was taught: R. Nathan stated: How do we know that if a man claims a Maneh (100 Zuzim) from another and the latter (claims a similar amount) from a third, that money is collected from the one (the last) and given to the other (the first) ? From the verse (Num. V, 7) : And give it unto him whom he hath trespassed (translating: And he [the last debtor] gives it unto him [the first] to whom he [the second] is indebted).’ The argument: ‘I would have caused it to flee to the meadow’ is attacked by Tosaf., a.l. s.v. הוה מערקנא ליה because this would certainly be regarded as an illegal act according to R. Akiba (contra R. Ishmael in B.K. 33a) who is of the opinion that both the plaintiff and the defendant become joint owners of the ox and consequently by causing the ox to escape to the meadow the defendant is regarded as a robber. Furthermore the Court of Law has a right to pronounce the ban against the defendant if he evades payment of damages. Therefore, Tosaf. explain that what is really meant by this argument is this: By causing the ox to flee to the meadow the plaintiff would have made a settlement with me for a small amount. Consequently, the borrower by not returning the ox to the owner has caused the latter damages by having to pay the difference between the settlemnt and the full amount of damages. This explanation of Tosaf. contradicts Caro’s present ruling according to which one is forbidden to employ evasive means in order to obtain the consent of the plaintiff to make a settlement and to forgo the difference. W.G. removes this contradiction by explaining that in B.K. the circumstances are entirely different because the borrower has a valid plea against the owner, viz., that the latter can have nothing against him, since he borrowed the ox on the assumption that it was Tam and it was discovered that it was declared Mu‘ad, consequently, he is not responsible for making any payment towards a liability which is in a different category. Hence, he may employ a vague and paltry reply, namely, ‘I would have caused it to flee to the meadow.’ The same vague reply could be given by the owner, but it does not mean that it is permissible to actually do so. In short, it means that under the circumstances one may state that he would have acted thus, but not that it is really permissible to do this (v. Be’er Eliyahu). In the present ruling however, we are told what the final law is in such a case. Tummim advances another interpretation. In B.K. we deal with a case where the owner may be trying to collect an old loan from the plaintiff, but he has no witnesses to prove this. Consequently, under the circumstances he may employ evasive means to recover his debt. Shebuth Ya‘akob differentiates between Tosaf. and our present ruling as follows : In B.K. by causing the animal to escape to the meadow it would be considered merely an indirect act, which is permitted on the principle, ‘sit and do nothing’ (שב ואל תעשה עדיף), i.e., it is better not to act directly in doubtful cases; whereas in the present ruling the prohibition is against a direct act to force one into a settlement through evasive means. , also Sheb. 31a that it is forbidden to use evasive means even in support of the truth. Tummim and Nethiboth write that the present ruling has reference only where the plaintiff has a just claim, but where the defendant has a valid counterclaim which he cannot ascertain before the Court of Law, he may employ evasive means, provided he does not appear as a wicked person in the eyes of the Judges. Gloss: And if he violated [this law] and employed [evasive means], he does not comply with the requirements of Heaven until he restores to him [the plaintiff] what rightfully belongs to him.²³RaShBA in Resp. Cf. B.K. 55b-56a: According to R. Joshua one of the acts for which one is exempt before men but is liable before Heaven, is to hire false witnesses to offer testimony. Regarding this the Talmud says: ‘In what case? Shall we say for his own benefit, then he has to pay back the money (he thus obtained illegitimately) and should be liable even by the judgment of men? — It therefore means for the benefit of his friend.’ Hence, ‘for his own benefit’ must mean that he employed evasive methods. Yet, it states ‘he has to pay back the money’ whence it follows that the money is recovered by the judgment of men which contradicts Isserles’ ruling who states that ‘he does not comply with the requirements of heaven’ which implies that he is exempt by the judgment of men. Isserles must therefore be in in accord with Tosaf. ibid., s.v. ממונא according to whom if we were to know that they are false witnesses he would have to pay, but since we are ignorant of this, the Talmud cannot very well state that he is exempt by the judgment of men. So too, Isserles, states that ‘he does not comply with the requirements of Heaven’ because by employing evasive means he has thereby kept the entire matter hidden from people so that we are unaware whether he has anything in his possession illegally or not. Hence, the statement, ‘he does not comply with the requirements of Heaven.’

The commandment on the court to judge the damages of an animal: To judge in the case of a damaging ox — whether it [injures] a person, as it is written in the section of (Exodus 21:28), “If it gores,” or whether it damages [assets], as it is written in the section of (Exodus 21:35), “If it hurts (yigof).” And the main understanding of hurting [here] is to push (Rashi on Exodus 21:35). However, whether it damages with its body or its feet, or it bites with its teeth, or even if it damages with its horns, it is all implied by the expression of hurting. But goring only implies with the horn (Bava Kamma 2b). [Still,] the [other] injuries of a man by an ox have already been included; as it is written in the section of “If it gores,” “and it kills” (Exodus 21:28) — since it implies killing in any case, whether it is with goring or whether it is with other things (Mekhilta DeRabbi Yishmael 21:28:2). And it is not specifically an ox, but rather we are even obligated for any domesticated animal or wild animal or bird that has damaged. [However], it is only that the verse stated [that] which was common. And we have already said that all of the commandments that come about the matter of justice have one root to them and it is a rational thing. And [so] I do not have to review it with each and every one.

To judge cases of injuries caused by beasts, as it is said, “And if one man’s ox hurt another’s ox….” (Ex. 21:35-36).