Another Look at Tam

Bava Kama (4:1) | Yisrael Bankier | 12 years ago

The fourth chapter begins by dealing with a case of a tam that attacks a number of other oxen. Since, as we have learnt, regarding a tam compensation collected cannot be in excess of the value of the offending ox, the Mishnah addresses how the compensation is paid and if necessary divided. 

Before we look at the opinions in the Mishnah we need some background. The Gemara (36a) records a debate about the nature of the relationship between the owner of the tam and the owner of the injured ox. R’ Yishmael explains that the later has the status of a lender (baal chov). While the debt is to be collected from the offending ox, initially he has no rights in that ox. R’ Akiva understands that both owners become partners in the shor tam. 

Let us return to the Mishnah. R’ Meir maintains the owner of the last ox that was damaged collects compensation first. If there are any funds remaining, then the owner of the ox that was damaged just prior, can collect compensation and so forth. R’ Shimon however understands that after the first act of damage the first owner and the owner of the tam have 50% shares in the ox. After the subsequent offense, their shares are diluted by 50% and owner of the latest victim takes a 50% share, and so on.

The Gemara is comfortable with the position of R’ Shimonas it aligns with the position of R’ Akiva, i.e. the owner of the tamand the owner of the damaged ox become financial partners. The position of the R’ Meir however is questioned. If R’ Meir held like R’ Yishmael then it would be the first owner who would have the first claim since his “debt” precedes all others.

The Gemara answers that R’ Meir is ruling regarding a case where the owner of the damaged ox quickly seized the offending ox in order to collect the damages. At that point he effectively becomes a shomer sachar (paid guardian) and is responsible for the damaged that is caused. This happens with each subsequent case; therefore the last owner can make the first claim. 

There are a number of difficulties with this explanation. The Mishnah stated that the tam offended four or five times. If that was the case it should no longer be a tam, but rather a mu’ad and the owner should subsequently pay full compensation. The Tosfot Yom Tov provides two answers. The first is Rashi’s, that the ox did not damage in succession and there were instances in between (of varying number) where the tam was placid. Alternatively, the Tosfot Yom Tov suggests that the owner had not yet been warned in front of Beit Din three times, which is necessary to turn the ox into a mu’ad.

The Tosfot Chadashim explains why Rashi did not provide this simpler answer suggested by the Tosfot Yom Tov. Had the case in the Mishnah been that the owner of the offending ox had not yet been brought to Beit Din, then the position of R’ Shimon later in the Mishnah is difficult. How can they become partners in the tam prior to Beit Dinpassing judgment? Now if one suggests that it refers to where the ox was seized for payment, then R’ Shimon would agree with R’ Meir that he become a shomer sachar. The Tosfot Chadashim explains that we must say that the cases had come before Beit Din, but the shor is still not a mu’ad because of the situation as described by Rashi.

We can site a Tosfot in defense of the Tosfot Yom Tov. The Tosfot assume that our Mishnah is referring to a case where the owner has not been brought to beit din. Consequently they have a difficultly with the position of R’ Shimon that the two parties can be come partners in this shor tam before it commits its next offense. The Tosfot answers (albeit admitting the answer is strained) that since the owner can immediately bring witnesses and therefore claim his share, he shares in the obligation to protect it from causing further damage.

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