More Discussions for this daf
1. Dibur is not a Ma'aseh 2. Pshat in Rashi 3. Which Mesichta comes before Makos?
4. Keitzad Ein HaEdim Neasim Zomemim 5. Edut Sh'eino Yachol L'haziman 6. Question on the second Kal Vachomer.
7. Rebbi Yochanan's Kal v'Chomer 8. Eidim Zomemim 9. Rebbi Yochanan's Kal v'Chomer
10. Does the Gerushah become a Chalalah? 11. Damages 12. Iy Atah Yachol Lehazimah, and Kim Lei...
13. 40 lashes 14. Minah Hani Mili 15. Edus she'I Efshar l'Hazimah
16. Malkus for Edim Zomemim in a case of Ben Gerushah, Tosfos 17. Question on Suggestion of First Tosfos 18. First Tosfos on Daf 2a
19. Mitzri Sheni 20. Lo Sa'aneh Without an Action 21. Mitzri Sheni
22. Ben Gerushah And Ben Chalutzah 23. Chalutzah 24. Galus
25. Chalalah 26. R Yochanons Kal v'Chomer- Insights 27. Killing b'Shogeg or b'Meizid
28. Ma'aseh or not? 29. v'Lo Ka'asher Asah 30. Tosfos on "Mah ha'Sokel"
31. Tosfos and Maharsha 2b 32. R. Yochanan's Kal v'Chomer 33. Question on the Ritva from Shifchah Charufah (in Insights)
34. מכות בגימטריא הרהורים 35. מכות בגימטריא הרהורים 36. תוספות ד"ה מעידין
37. אין עושין בהן דין הזמה כל עיקר 38. והצדיקו את הצדיק 39. בגניבתו ולא בזממו
DAF DISCUSSIONS - MAKOS 2

bob agrast asked:

I understand that this section is about zomemim witnesses, but in the section it discusses. If a persons ox gores someone, forgetting that this is false, the notion is that the person was subject to a fine rather than compensation. I felt that if the goring actually happened that the person especially since they had been warned three times that the ox could hurt someone, that they should be liable for the fine but also for compensation since they knowingly were neglegent and did not prevent the goring. My question is why? Why is the person not liable for both a fine which would be for an atonement for their negligence but also due should be compensation for the potential loss of life or function. The person if killed would no longer be able to produce for the family and therefore they incur a financial loss.

bob agrast, Cleveland, Ohio

The Kollel replies:

Bob - If I understand you correctly, you are asking why the owner of the ox has to pay only Kofer (which, according to some, is the value of the owner himself) when his ox kills a person after goring three times. Why isn't the owner liable to also compensate the family of the victim for the death of their relative, besides paying the Kofer?

That is an excellent question. In fact, your question is made even stronger upon considering the Gemara in Bava Kama 43a-b. The Gemara tells us that in cases that Kofer is not paid (for example, according to some Kofer is not paid if the ox killed a person unintentionally), one does compensate the family of the victim by paying the value of the victim. If so, why isn't the family compensated even when Kofer is paid? At the very least, in cases where the value of the owner of the ox is less than the value of the victim, the owner should have to pay the greater of the two values, rather than paying only his own value (see Tosfos, Bava Kama 43a DH Mai Lav)!

The Gemara there goes even further. It makes the payment to the victim's family contingent on the Kofer payment. For example, one is exempt from the Kofer payment of 30 Shekalim that is paid when one's ox kills a slave, if he admits on his own accord to the fact that his ox killed a slave. The Gemara posits that it therefore follows that he is also exempt from paying the victim's family the value of the victim if he admits that his ox gored a slave! (See Shitah Mekubetzes there.) Why shouldn't one be obligated to compensate the victim's family for the value of the victim regardless of the Kofer payment?

As I understand it, Rashi alludes to the answer to your question (in Bava Kama 43a DH v'Iy Damim, 43b DH Iy Hachi). Value can be attached to the loss of limb, or any other form of maiming. However, value cannot be attached to the loss of life . We can compensate a person for the amount he has depreciated, due to bodily damage, on the slave market. Even though he is not a slave, he can theoretically sell himself as a slave, for profit (see ROSH, beginning of Bava Kama Perek 8). However, nobody can sell their relative as a slave (- even a young girl's father has very limited rights to his daughter's handiwork). Therefore, nobody need be compensated for a relative's death. (Compensation for the agony and suffering that relatives experience cannot be collected, Halachically.) Thus, counter-intuitively, when an ox kills someone, there is no "victim" around to compensate, and the owner of the ox would be entirely exempt from payment if not for the law of Kofer.

Nevertheless, the sages decided (according to one opinion in Bava Kama 43a) that when Kofer is not paid, it can be derived from the fact that the Torah created a Kofer obligation that the Torah would not want to exempt the owner of the ox from all payment. Therefore, in such cases the owner must pay the family of the victim the "value" of the victim, as mentioned above. However, whenever the Torah did not create a Kofer payment, we will not "create" a compensation payment either.

I hope that this helps you. Best wishes,

Mordecai Kornfeld