Translation:Shulchan Aruch/Choshen Mishpat/389

Paragraph 1- If any living creature that is in the domain of a person damaged, the owner would be liable to pay, as the verse states, “when a man’s ox injures another’s ox.” The verse includes oxen and other domesticated an undomesticated animals and birds. The verse only mentioned ox because that is typical.

Paragraph 2- How much must he pay? If the damage was with something that the creature always does, as it was created to do, such as an animal that ate straw or an ear of grain, or damaged with its leg or while walking, the owner would be required to pay the full damage from his best properties, as the verse states, “from the best of his field and the best of his vineyard, he shall pay.” If the creature deviated and did something that it does not generally do and damaged while doing it, such as an ox that gored or bit, he would be required to pay half the damage from the actual item that damaged, as the verse states, “and they shall sell the living ox and divide its value . . .”

Paragraph 3- How so? If an ox worth 100 gored an ox worth 20 and killed it, and the carcass was worth four, the owner of the damaging ox is required to pay eight and is only required to pay from the actual ox, as the verse states, “and they shall sell the living ox.”

Paragraph 4- Thus, if an ox worth 20 killed an ox worth 200, and the carcass was worth 100, the owner of the carcass cannot tell the owner of the living ox to give him 50. Rather, the owner of the living ox would tell the victim here in front of you is the ox that damaged, take it and go, even if it was only worth one dinar. The same is true for anything similar.

Paragraph 5- If an animal does an action that it always does, as is the custom of its species, that is called a “warned” action. If the animal deviates and performs an action that its species does not always do, such as goring or biting, that is called an “unwarned” action. If this deviating animal deviates numerous times, it becomes warned for that action that it frequently does, as the verse states, “or it becomes know that it is a goring ox.”

Paragraph 6- There are five different unwarned-actions an animal can do. If the animal is warned on any of them, it becomes warned for that action. There are the actions: an animal is not considered originally warned not to gore, not to push, not to bite, not to crouch on large vessels and not to kick. If the animal is warned on one of them, it becomes warned for that action. With respect to “tooth-damage,” however, the animal is originally warned with respect to eating that which is appropriate for the animal, With respect to “leg-damage,” the animal is originally warned with respect to breaking while walking.

Paragraph 7- There are those who say an animal is warned originally with respect to crouching on small jugs and crushing them, while there are those who disagree.

Paragraph 8- There are five forms of wild animals whom are originally warned to damage from the time they are created, even if they are domesticated. Thus, if they were to damage or kill by goring, biting or trampling or anything similar, the owner would be required to pay for the full damage. These are the animals: the wolf, the lion, the bear, the leopard, the hyena and a snake that bit. These are all warned, even if they were domesticated. There are those who say that only a snake is warned for all types of damages, but the others are only warned for the damage they typically engage in, such as a lion trampling and a wolf tearing up, but not the reverse.

Paragraph 9- In any case of a warned animal, the owner would pay for the full damage from the best of his properties. In the case of an unwarned animal, the owner would pay for half the damage from the damaging animal.

Paragraph 10- When is this true? Where the animal entered the victim’s domain and damaged him. If the victim entered the tortfeasor’s domain and his animal damaged the victim, however, he would be exempt for everything because he can tell the victim that had he not entered his domain, he would not have been damaged and the Torah explicitly states, “when he sends his livestock and it grazes in another field.” This is all the Rambam’s language, and it requires clarification because this verse was stated by tooth and leg-damages to exempt them where the property belongs to both parties. That which horn-damage is exempt in the tortfeasor’s domain, however, has no connection to this verse. Rather, he would be exempt because he can say had you not entered etc. This that the tortfeasor is exempt in his domain, is only where the victim entered without permission. If he entered with permission, however, such as workers who are coming to claim their payment and the owner’s ox gored them, the owner would be liable.

Paragraph 11- If an animal damaged in the public domain or in the domain of neither the tortfeasor nor the victim, or a courtyard belonging to both parties that is designated to place fruits and bring in animals, such as a valley or something similar, of it belonged to both of them to bring in animals and neither of them may bring in fruits, and the animal damaged with its tooth or foot in the ordinary course, the owner would be exempt because he has permission to go here and it is typical for the animal to go and eat and break while walking. If the animal gored, pushed, crouched, kicked or bit and it was unwarned, the owner would pay for half the damage. If the animal was warned he would pay for the full damage.

Paragraph 12- If the courtyard belonging to both of them was designated for fruits but not to bring in animals, and one of the partners brought in his animal and it damaged, he would even be liable on tooth and foot-damage.

Paragraph 13- Similarly, if the courtyard was designated for both of their animals, and only one of them had permission to bring in fruits, and his fruits were damaged, the owner of the animal would be liable for tooth and foot-damage.

Paragraph 14- If the courtyard belongs to one party for fruits but not oxen, and to the other for oxen and not fruits, and the animal of the party whom the courtyard is designated for oxen and not fruits damages with tooth or foot-damage the party whom the courtyard is designated for fruits with, he would be liable because from his perspective the courtyard belongs to the victim. If the animal committed horn-damage, he would be exempt because from his perspective it is the tortfeasor’s domain. If the animal belonging to the party whom the courtyard is designated for fruits damages with horn-damage the party whom the courtyard is designated for oxen, he would be liable, because from his perspective it is the victim’s courtyard. If it damages with tooth or foot-damage, he would be exempt because from his perspective it is the tortfeasor’s courtyard.

Paragraph 15- One is not liable for tooth or foot-damage unless the damage occurred in the victim’s domain. If it occurred in the public domain, however, he would be exempt. It goes without saying that he is exempt in his own domain. If the animal shot out stones in the public domain and it went and damaged in the victim’s domain, however, or if a long piece of wood was partially in the public domain and partially in the victim’s domain and the animal stepped on it in the public domain and damaged vessels in the victim’s domain, the owner would be liable.

Paragraph 16- If Reuven brought his fruits to Shimon’s courtyard without his consent, and Levi’s ox entered and ate them, Levi would be exempt. If Reuven brought his fruits with consent, however, and Levi’s ox entered without consent, Levi would be liable because it is like a courtyard belongs to partners where another’s ox enters to damage, in which case the owner would be liable.

Paragraph 17- If the courtyard belongs to parties with respect to their oxen, but only to one of them for other things, and such party brought his garment and the other party whom the courtyard is only designated for oxen brings his ox and the ox damages the garment and the garment also damages the ox, we do not say the damages should cancel each other out. Rather, we would appraise the damage in court and whomever damaged more would pay.

Paragraph 18- There are three primary categories for damage done by an ox: horn, tooth and foot damage. They are called primary categories because they are written in the verse. They each have subcategories. Anything that is comparable to these damages is called a subcategory and has the same law as the primary category except for pebble-damage, which will be discussed.

Paragraph 19- What is the case of the ox the Torah is referring to? Where an ox gores with its horn and it does not typically do so, but it just happened, and the ox has no benefit from its damage. Anything similar has the same law, such as where the animal pushed with its body, bit, stepped on or crouched on vessels and broke them. Similarly, if the animal ate clothing or vessels, the law would be like it committed horn-damage, and the owner would only pay for half the damage, regardless of whether the incident was the victim’s domain or in the public domain. There are other cases where the animal damages with its leg or mouth but its law is that of horn-damage, and they will be discussed in Siman 390.

Paragraph 20- If a cow crouched in a public domain, and another cow came and went on top of that cow and the cow underneath kicked it, although this cow had deviated and crouched, the walking cow had no right to kick it. If the cow damaged the crouched cow while walking, however, the owner would be exempt.