Even the Derashos of the Gemara Must Be Studied Carefully

WILD (OX) PROFITEERING

By Rabbi Alexander London

BAVA KAMMA 34b

When a tame ox gores and kills another ox, the Torah states: “and also the carcass shall be divided” (Ex. 21:35). Rabi Yehuda learns from this verse that if the carcass went up in value before the case comes to court, the owner of the damaging ox shares in the appreciation. Thus we reduce the amount that he must pay for damages.

The Tur (OC 403) brings the rule that the owner of the damaging ox shares in the appreciation of the carcass by both a tame ox and a wild ox. The Drisha notes that the verse which is the source of this rule, “and also the carcass shall be divided”, is referring to a tame ox. How does the Tur know that the rule also applies to a wild ox?

The Drisha brings a further gemara which states: Since we see that the Torah gave the owner of the damaging ox a share in the appreciation of the carcass, I might say that he could come out with a profit. For example, if the ox which was gored was originally worth twenty zuz and its carcass went up in value to thirty zuz, I might say that the owner of the goring ox would take a share of the appreciation and come out gaining. Therefore the Torah stated, “He shall certainly pay” (Ex. 21:36); the owner of the damaging ox pays and does not take.

The Drisha notes that the verse, “He shall certainly pay”, is written by a wild ox. The Torah is telling us that the owner of the wild ox cannot come out with a profit. However, appreciation of the carcass can be used to reduce his liability. Thus the Tur ruled that even the owner of a wild ox shares in the appreciation of the carcass….

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