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Rambam - 3 Chapters a Day

Hilchot Nizkei Mamon - Chapter Six, Hilchot Nizkei Mamon - Chapter Seven, Hilchot Nizkei Mamon - Chapter Eight

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Hilchot Nizkei Mamon - Chapter Six

1

What is meant by the term mu'ad?1 [An animal regarding which] testimony2 was given on three [different] days. If, however, an animal gored [other animals] on one day, or it bit, lay upon, kicked or butted [other animals many] - even one hundred - times in one day, it should not be considered to be mu'ad.3 If three pairs of witnesses gave testimony [concerning an animal]4 on one day, there is an [unresolved] doubt whether it is classified as mu'ad or not.

א

אֵיזֶהוּ מוּעָד כָּל שֶׁהֵעִידוּ בּוֹ שְׁלֹשָׁה יָמִים. אֲבָל אִם נָגַח בְּיוֹם אֶחָד אוֹ נָשַׁךְ אוֹ רָבַץ אוֹ בָּעַט אוֹ נָגַף אֲפִלּוּ מֵאָה פְּעָמִים אֵין זֶה מוּעָד. הֵעִידוּ בּוֹ שְׁלֹשָׁה כִּתֵּי עֵדִים בְּיוֹם אֶחָד הֲרֵי זֶה סָפֵק אִם הוּעַד אוֹ לֹא הוּעַד:

2

The warning administered to an owner [for an animal] must be administered in the owner's presence, as [implied by Exodus 21:29]: "And the owners shall be warned." The warning must be administered in a court.5

ב

אֵין הֶעָדָה אֶלָּא בִּפְנֵי הַבְּעָלִים וּבִפְנֵי בֵּית דִּין שֶׁנֶּאֱמַר (שמות כא כט) "וְהוּעַד בִּבְעָלָיו". וְאֵין הֶעָדָה אֶלָּא בְּבֵית דִּין:

3

When an ox belonging to a deaf mute, a mentally incompetent individual, a minor6 or a person who is overseas gores, [the owner] is not liable. The court should, however, appoint a guardian for the ox and administer the warning to the guardian.

ג

שׁוֹר שֶׁל חֵרֵשׁ שׁוֹטֶה וְקָטָן וּמִי שֶׁהוּא בִּמְדִינַת הַיָּם שֶׁנָּגְחוּ פְּטוּרִין. אֲבָל בֵּית דִּין מַעֲמִידִין לָהֶם אַפּוֹטְרוֹפְּסִין וּמְעִידִין בָּהֶן בִּפְנֵי הָאַפּוֹטְרוֹפְּסִין:

4

[The following rules apply when this ox] causes damage after the warning was administered to the guardian:7 If the ox is still classified as a tam, an ordinary animal, half the damages must be paid from the body [of the ox].8 If a warning was administered on three [different] days, and afterwards [the ox] causes damage, the guardian must pay for the damage from the choicest properties he owns.9 When the orphans attain majority, they must enter into litigation with the guardian and repay him.

ד

הִזִּיקוּ אַחַר שֶׁהוּעֲדוּ בִּפְנֵי אַפּוֹטְרוֹפְּסִין אִם עֲדַיִן הוּא תָּם מְשַׁלֵּם חֲצִי נֵזֶק מִגּוּפוֹ וְאִם הוּעַד בּוֹ שְׁלֹשָׁה יָמִים וְאַחַר כָּךְ הִזִּיק מְשַׁלֵּם נֵזֶק שָׁלֵם מִן הַיָּפֶה שֶׁבְּנִכְסֵי אַפּוֹטְרוֹפְּסִין. וְלִכְשֶׁיִּגְדְּלוּ הַיְתוֹמִים יַעֲשׂוּ דִּין עִם הָאַפּוֹטְרוֹפְּסִין וִישַׁלְּמוּ לָהֶן:

5

When oxen are used for sport,10 and they are trained to gore each other, they are not considered to be mu'adim [to gore] each other. [Moreover,] even if they kill a human, they should not be executed, for [Exodus 21:28] states: "When an ox gores...," [implying that it does so on its own initiative,] not that it was prompted to gore.

ה

שְׁוָרִים שֶׁמְּשַׂחֲקִין בָּהֶן וּמְלַמְּדִין אוֹתָן לִגַּח זֶה אֶת זֶה אֵינָם מוּעָדִים זֶה לָזֶה. וַאֲפִלּוּ הֵמִיתוּ אֶת הָאָדָם אֵינָן חַיָּבִין מִיתָה שֶׁנֶּאֱמַר (שמות כא כח) "כִי יִגַּח" לֹא שֶׁיַּגִּיחוּהוּ:

6

When an ox was sold or given away as a present after its owners had been warned, its status reverts back to that of a tam. With the change in ownership, its status changes. If, however, an ox was borrowed or entrusted to a watchman, its status remains unchanged. Similarly, if a warning regarding an ox was given to a guardian, and then the owner who was a deaf mute regained his faculties, or the owner who was mentally incompetent regained competence, or the owner who was a minor attains majority, the status of the ox remains unchanged,11 for it remains in the domain of the [same] owner.

ו

שׁוֹר שֶׁהוּעַד וְנִמְכַּר אוֹ נִתַּן בְּמַתָּנָה חָזַר לְתַמּוּתוֹ שֶׁהָרְשׁוּת שֶׁנִּשְׁתַּנֵּית מְשַׁנָּה דִּינוֹ. אֲבָל אִם הִשְׁאִילוֹ אוֹ מְסָרוֹ לְשׁוֹמֵר הֲרֵי הוּא בְּחֶזְקָתוֹ. וְכֵן שׁוֹר שֶׁהוּעַד בִּפְנֵי אַפּוֹטְרוֹפְּסִין וְנִתְפַּקֵּחַ הַחֵרֵשׁ וְנִשְׁתַּפָּה הַשּׁוֹטָה וְהִגְדִּיל הַקָּטָן אַף עַל פִּי שֶׁבָּטְלוּ הָאַפּוֹטְרוֹפְּסִין הֲרֵי הֵן מוּעָדִין בְּחֶזְקָתָן שֶׁהֲרֵי בִּרְשׁוּת בְּעָלִים הֵן:

7

When an animal was classified as mu'ad, and then it changes its conduct, its status changes and it is considered to be a tam. What is implied? If an ox was classified as mu'ad with regard to goring and it ceased goring, it is considered to be a tam with regard to goring, even though it still butts. When is it considered to have ceased [goring]? When children play12 with it and it does not gore them. Similarly with regard to other tendencies regarding which warnings were given, [the status of the animal remains unchanged] until [children] play with it, and it does not do [what it was wont to do previously].

ז

בְּהֵמָה שֶׁהוּעֲדָה וְחָזְרָה בָּהּ מִדָּבָר שֶׁהוּעֲדָה לוֹ חָזְרָה לְתַמּוּתָהּ. כֵּיצַד. שׁוֹר שֶׁהוּעַד לִגַּח וְחָזַר שֶׁלֹּא לִגַּח אַף עַל פִּי שֶׁהוּא נוֹגֵף הֲרֵי זֶה תָּם לִנְגִיחָה. וּמֵאֵימָתַי הוּא חֲזָרָתוֹ עַד שֶׁיִּהְיוּ הַתִּינוֹקוֹת מְמַשְׁמְשִׁין בּוֹ וְאֵינוֹ נוֹגֵחַ. וְכֵן בִּשְׁאָר הַדְּבָרִים שֶׁהוּעַד לָהֶן עַד שֶׁיְּמַשְׁמְשׁוּ בּוֹ וְלֹא יִהְיֶה עוֹשֶׂה אוֹתָן:

8

When an ox has been classified as mu'ad with regard to [other oxen], it is not considered to be mu'ad with regard to other types of animals. An ox that has been classified as mu'ad with regard to humans is not considered to be mu'ad with regard to animals.13 If it has been classified as mu'ad with regard to young animals, it is not considered to be mu'ad with regard to older animals. Therefore, if it caused damage of the type regarding which the warning was given, the owner is liable for the full amount of the damages. If it caused damages of another type, regarding which a warning was not given, [the owners] must pay [only] half the damages. If it has been classified as mu'ad with regard to Sabbaths, it is not considered to be mu'ad with regard to weekdays.14 If it causes damage on the Sabbath, the owner is liable for the full amount of the damages. During the week, [the owners] must pay [only] half the damages. When is the warning rescinded? When children will play with it on the day concerning which the warning was given, and it does not harm them in the way it is known to cause harm.

ח

שׁוֹר שֶׁהוּא מוּעָד לְמִינוֹ הֲרֵי זֶה אֵינוֹ מוּעָד לְשֶׁאֵינוֹ מִינוֹ. הוּעַד לְאָדָם אֵינוֹ מוֹעֵד לִבְהֵמָה. הוּעַד לִקְטַנִּים אֵינוֹ מוּעָד לִגְדוֹלִים. לְפִיכָךְ אִם הִזִּיק אֶת מִין שֶׁהוּא מוּעָד לוֹ מְשַׁלֵּם נֵזֶק שָׁלֵם וְאִם הִזִּיק לִשְׁאָר הַמִּינִין מְשַׁלֵּם חֲצִי נֵזֶק. הָיָה מוּעָד לְשַׁבָּתוֹת אֵינוֹ מוּעָד לִימוֹת הַחל וְאִם הִזִּיק בְּשַׁבָּתוֹת מְשַׁלֵּם נֵזֶק שָׁלֵם וּבִימוֹת הַחל מְשַׁלֵּם חֲצִי נֵזֶק. וּמֵאֵימָתַי הִיא חֲזָרָתוֹ מִשֶּׁיְּמַשְׁמְשׁוּ הַתִּינוֹקוֹת בּוֹ בַּיּוֹם שֶׁהוּא מוּעָד לוֹ וְלֹא יִהְיֶה מַזִּיק נֵזֶק שֶׁהוּעַד לוֹ:

9

If [an ox] gored another ox on one day, a donkey on the following day, and a camel on the day afterwards, it is classified as mu'ad for all [these three] types [of animals].15 [A warning should also be administered to an owner in the following situation. His ox] saw another ox on one day and gored it. On the next day, it saw another ox but did not gore it. On the third day, it saw another ox and gored it. On the fourth day, it saw another ox but did not gore it. On the fifth day, it saw another ox and gored it, and on the sixth day, it saw another ox but did not gore it. [In these circumstances, the ox] becomes classified as mu'ad to gore oxen on alternate days.16 Similar laws apply in other analogous situations.

ט

נָגַח שׁוֹר הַיּוֹם וַחֲמוֹר לְמָחָר וְגָמָל בְּיוֹם שְׁלִישִׁי נַעֲשָׂה מוּעָד לַכּל. רָאָה שׁוֹר הַיּוֹם וּנְגָחוֹ. וּלְמָחָר רָאָה שׁוֹר וְלֹא נְגָחוֹ. וּבַיּוֹם הַשְּׁלִישִׁי רָאָה שׁוֹר וּנְגָחוֹ. וּבָרְבִיעִי רָאָה שׁוֹר וְלֹא נְגָחוֹ. וּבַחֲמִישִׁי רָאָה שׁוֹר וּנְגָחוֹ. וּבַשִּׁשִּׁי רָאָה שׁוֹר וְלֹא נְגָחוֹ. נַעֲשָׂה מוּעָד לְסֵרוּגִין לִשְׁוָרִים. וְכֵן כָּל כַּיּוֹצֵא בָּזֶה:

10

[Similarly, a warning should also be administered to an owner in the following situation. His ox] saw another ox on one day and gored it. On the next day, it saw a donkey, but did not gore it. On the third day, it saw a horse and gored it. On the fourth day, it saw a camel but did not gore it. On the fifth day, it saw a mule and gored it, and on the sixth day, it saw a wild ass but did not gore it. [In these circumstances, the ox] becomes classified as mu'ad to gore all [these three] types [of animals] on alternate days. If it gores one of these types of animals that it had gored on alternate days on a day on which it is mu'ad, [the owner must pay the full damages, as is required for an ox that is] mu'ad.

י

רָאָה שׁוֹר הַיּוֹם וּנְגָחוֹ. וּלְמָחָר רָאָה חֲמוֹר וְלֹא נְגָחוֹ. וּבַשְּׁלִישִׁי רָאָה סוּס וּנְגָחוֹ. וּבָרְבִיעִי רָאָה גָּמָל וְלֹא נְגָחוֹ. וּבַחֲמִישִׁי רָאָה פֶּרֶד וּנְגָחוֹ. וּבַשִּׁשִּׁי רָאָה עָרוֹד וְלֹא נְגָחוֹ. נַעֲשָׂה מוּעָד לְסֵרוּגִין לַכּל וְאִם נָגַח בַּיּוֹם שֶׁהוּא מוּעָד לוֹ אֶחָד מִשְּׁלֹשֶׁת הַמִּינִין שֶׁנָּגַח בְּסֵרוּגִין הֲרֵי זֶה מוּעָד:

11

[When an ox] gores [an animal] on the fifteenth of one month, on the sixteenth of the following month, and on the seventeenth of the third month, it is not classified as mu'ad until it adds a day a third time, in the fourth month.17 If an ox hears a shofar blast and gores on three [successive] occasions, it is considered mu'ad [to gore after hearing] shofar blasts.18 Similar laws apply in other analogous situations.

יא

נָגַח בַּחֲמִשָּׁה עָשָׂר לְחֹדֶשׁ זֶה. וּבְשִׁשָּׁה עָשָׂר לְחֹדֶשׁ שֵׁנִי. וּבְשִׁבְעָה עָשָׂר לְחֹדֶשׁ שְׁלִישִׁי. אֵינוֹ מוּעָד עַד שֶׁיְּשַׁלֵּשׁ בַּדִּלּוּג. שָׁמַע קוֹל שׁוֹפָר וְנָגַח קוֹל שׁוֹפָר וְנָגַח קוֹל שׁוֹפָר וְנָגַח נַעֲשָׂה מוּעָד לְשׁוֹפָרוֹת. וְכֵן כָּל כַּיּוֹצֵא בָּזֶה:

12

[There is an unresolved doubt in the following situations.] An ox gored three other oxen on three successive days. On the fourth day it gored a donkey, and on the fifth day it gored a camel. Or at first it gored a donkey and a camel, and then it gored three oxen one after another. There is a doubt if it is classified as mu'ad only for oxen or for all three types of animals. Similarly, if an ox gores on three successive Sabbaths and then on the Sunday and the Monday [following the third Sabbath], or it gored on Thursday, on Friday and then on three successive Sabbaths, there is a doubt whether it is classified as mu'ad only for Sabbaths or for a block of three days, two of which are ordinary weekdays.19

יב

נָגַח שְׁלֹשָׁה שְׁוָרִים בִּשְׁלֹשָׁה יָמִים זֶה אַחַר זֶה וּבָרְבִיעִי נָגַח חֲמוֹר וּבַחֲמִישִׁי נָגַח גָּמָל אוֹ שֶׁנָּגַח חֲמוֹר וְגָמָל בַּתְּחִלָּה בִּשְׁנֵי יָמִים זֶה אַחַר זֶה וְאַחַר כָּךְ נָגַח שְׁלֹשָׁה שְׁוָרִים זֶה אַחַר זֶה הֲרֵי זֶה סָפֵק אִם הוּא מוּעָד לִשְׁוָרִים בִּלְבַד אוֹ לִשְׁלֹשֶׁת הַמִּינִין הוּא מוּעָד. וְכֵן אִם נָגַח בְּשָׁלֹשׁ שַׁבָּתוֹת זוֹ אַחַר זוֹ וּבְאֶחָד בְּשַׁבָּת וּבְשֵׁנִי בְּשַׁבָּת אוֹ שֶׁנָּגַח בַּחֲמִישִׁי בְּשַׁבָּת וּבְעֶרֶב שַׁבָּת וּבְיוֹם הַשַּׁבָּת וּבִשְׁתֵּי שַׁבָּתוֹת הַבָּאוֹת אַחֲרֶיהָ הֲרֵי זֶה סָפֵק אִם הוּא מוּעָד לְשַׁבָּתוֹת בִּלְבַד אוֹ לִשְׁלֹשֶׁת הַיָּמִים שֶׁשְּׁנַיִם מֵהֶן חל:

13

With regard to these unresolved questions and the like, [the owner of the ox] that caused the damage is required to pay for only half the damages. If the person whose property was damaged seizes property belonging to the other person equivalent to the full amount of the damages, it is not expropriated from him.20

יג

וְכָל אֵלּוּ הַסְּפֵקוֹת וְכַיּוֹצֵא בָּהֶן אֵין מְחַיְּבִין בָּהֶן אֶת הַמַּזִּיק אֶלָּא חֲצִי נֵזֶק. וְאִם תָּפַשׂ הַנִּזָּק נֵזֶק שָׁלֵם אֵין מוֹצִיאִין מִיָּדוֹ:

Footnotes
1.

Mu'ad literally means forewarned - i.e., the animal is prone to perform such acts, and the owner should be forewarned.

2.

From two acceptable witnesses.

3.

For it is possible that the animal was disturbed by certain factors on that day, and its conduct is not indicative of its ordinary pattern.

4.

I.e., that it gored three other animals on three days (Ra'avad, Maggid Mishneh).

5.

Hilchot Sanhedrin 5:12 states that this refers to a court of three judges who received semichah. For this reason, ever since this semichah was nullified, animals were no longer placed into the category of mu'ad. Accordingly, these laws do not apply in the present age.

6.

All the first three people are considered to be mentally incompetent and are not held responsible for their conduct.

7.

I.e., the Rambam explains that the ox gored another ox, a guardian was appointed, and then it gored again. (See Or Sameach.)

8.

Rashi (Bava Kama 39a), Rabbenu Asher and the Ra'avad differ and maintain that a guardian is not appointed unless the ox gores three times. Otherwise, the owners are not held liable.

9.

The Tur (Choshen Mishpat 406) states that the payment is made from the property of the orphans, and not from that of the guardian.

10.

Bava Kama 4:3 uses the expression A bull from a stadium. In his Commentary on the Mishnah, the Rambam explains This one sends out his bull and the other sends out his bull. After having trained their animals to gore, they call to them to attack the other animal to see who will be victorious. This is done with the owner's consent. This is the habit of many foolish people.

11.

See Halachah 3. Although previously the guardian was responsible for watching the ox, the change in responsibility is not a change in ownership, and the ox's status is not changed.

12.

Our translation is based on the Rambam's Commentary on the Mishnah (Bava Kama 2:4). In neither source does the Rambam mention how often the children must play with the ox. With this ruling, the Rambam rejects an opinion stated in Bava Kama 23b, which states that if three days pass when the ox sees other oxen and does not gore them, the warning is rescinded.

13.

Conversely, an ox that has been classified as mu'ad with regard to animals is not considered to be mu'ad with regard to humans.

14.

Rashi (Bava Kama 37a) explains that on the Sabbath, an ox is not required to work. Hence, it may not feel the yoke of its master as thoroughly and may therefore cause damage. Others cite the Jerusalem Talmud which explains that since people dress differently on the Sabbath, the ox will not be familiar with them, and may gore them because it views them as strangers. This does not apply during the week.

15.

Our translation is based on the gloss of the Maggid Mishneh, which reflects the Rambam's wording in Halachot 10 and 12. The Rambam is explaining that to be classified as mu'ad for a type of animal, an ox does not have to gore that type of animal three times. The Ra'avad differs and explains that the ox is considered to be mu'ad for all types of animals.

16.

Thus, if it gores an ox on an odd day, its owner will be liable for the full extent of the damages, and if it gores on an even day, he will be liable for only half the damages.

17.

A parallel to this law is found with regard to fixing the pattern of the onset of menstruation. See Hilchot Issurei Bi'ah 8:6.

18.

I.e., it appears that the shofar blasts prompt the ox to gore.

19.

The Ra'avad questions the Rambam's ruling, asking why the animal would be considered to be mu'ad for only this block of three days.

20.

See Chapter 1, Halachah 11.

Hilchot Nizkei Mamon - Chapter Seven

1

[The following rules apply when] an ox breaks loose and causes damage after its owner had tied it with a rope and locked it [in a corral] in an acceptable manner.1 If it is a tam, he is required to pay only half the damages. If it is mu'ad, he is not liable at all,2 as [implied by Exodus 21:29]: "[If the owners were warned,] and they did not guard him." [One can infer that] if they did guard, they are not liable. [And in the above instance, the ox] was guarded.3Similarly, if an ox caused damage through an activity for which he is mu'ad at the outset - e.g., it ate a type of food that it usually eats or it broke objects by treading on them - [the owner] is not liable [in the above instance].

א

שׁוֹר שֶׁקְּשָׁרוֹ בְּעָלָיו בְּמוֹסֵרָה וְנָעַל בְּפָנָיו כָּרָאוּי וְיָצָא וְהִזִּיק. אִם תָּם הוּא מְשַׁלֵּם חֲצִי נֵזֶק. וְאִם הָיָה מוּעָד פָּטוּר שֶׁנֶּאֱמַר (שמות כא לו) "וְלֹא יִשְׁמְרֶנּוּ" הָא אִם שְׁמָרוֹ פָּטוּר וְשָׁמוּר הוּא זֶה. וְכֵן אִם הִזִּיק בְּדָבָר שֶׁהוּא מוּעָד לוֹ מִתְּחִלָּתוֹ כְּגוֹן שֶׁאָכַל דְּבָרִים הָרְאוּיִים לוֹ אוֹ שָׁבַר בְּרַגְלָיו בְּדֶרֶךְ הִלּוּכוֹ פָּטוּר מִלְּשַׁלֵּם:

2

If the ox has been classified as mu'ad with regard to its right horn, but it is not mu'ad with regard to its left horn, and it got loose after it had been guarded in an acceptable manner, [the owner is required to] pay half the damages.4 [This applies] regardless of whether it gored with its right horn or its left horn.

ב

הָיָה מוּעָד לְקֶרֶן יָמִין וְאֵינוֹ מוּעָד לְקֶרֶן שְׂמֹאל וְיָצָא אַחַר שֶׁשְּׁמָרוֹ כָּרָאוּי וְנָגַח בֵּין בְּקֶרֶן יָמִין בֵּין בִּשְׂמֹאל מְשַׁלֵּם חֲצִי נֵזֶק:

3

[The following rules apply when] an animal injures a human being, whether intentionally or unintentionally. If the animal is a tam, half the damages must be paid from the body of the animal. If it is mu'ad, [the owner] must pay the entire amount of the damages.5 He is, however, not liable for compensation for unemployment, embarrassment, pain and medical expenses. For the Torah required redress for these matters only when one person injured a colleague.6 When, by contrast, it is an animal which caused the injury, it is as if [the animal] damaged the person's property, and [the owner] is liable for only half of the damages.For this reason, if a person's ox causes [another individual] embarrassment, he is not liable. If, however, he causes that embarrassment himself, he is liable, as will be explained.7If a person's ox injures his father or mother, or it sets fire to a person's grain heap on the Sabbath, [the owner] is liable, although if the person performed these same actions himself, he would not be liable.8

ג

בְּהֵמָה שֶׁחָבְלָה בְּאָדָם בֵּין בְּכַוָּנָה בֵּין שֶׁלֹּא בְּכַוָּנָה. אִם תַּמָּה הִיא מְשַׁלֵּם חֲצִי נֵזֶק מִגּוּפָהּ וְאִם מוּעֶדֶת הִיא מְשַׁלֵּם נֵזֶק שָׁלֵם. וּפָטוּר מִן הַשֶּׁבֶת וּמִן הַבּשֶׁת וּמִן הַצַּעַר וּמִן הָרִפּוּי. שֶׁאַרְבָּעָה דְּבָרִים אֵלּוּ לֹא חִיְּבָה בָּהֶן תּוֹרָה אֶלָּא בְּאָדָם שֶׁחָבַל בַּחֲבֵרוֹ אֲבָל בְּהֵמָה שֶׁחָבְלָה בָּאָדָם הֲרֵי זֶה כְּמִי שֶׁהִזִּיקָה מָמוֹנוֹ שֶׁאֵינוֹ חַיָּב אֶלָּא חֲצִי נֵזֶק בִּלְבַד. לְפִיכָךְ שׁוֹרוֹ שֶׁבִּיֵּשׁ פָּטוּר וְאִם בִּיֵּשׁ הוּא בְּעַצְמוֹ חַיָּב כְּמוֹ שֶׁיִּתְבָּאֵר. וְשׁוֹרוֹ שֶׁחָבַל בְּאָבִיו אוֹ בְּאִמּוֹ אוֹ שֶׁהִדְלִיק גְּדִישׁ חֲבֵרוֹ בְּשַׁבָּת חַיָּב בִּנְזָקִין וְאִלּוּ הָיָה הוּא בְּעַצְמוֹ הָעוֹשֶׂה זֶה פָּטוּר מִלְּשַׁלֵּם כְּמוֹ שֶׁיִּתְבָּאֵר:

4

[The following rules apply when] a person brings his ox into a courtyard belonging to another person without his permission. If the [uninvited ox] was gored by an ox belonging to the owner or bitten by the owner's dog, the owner is not liable. If the [uninvited ox] gored an ox belonging to the owner [of the courtyard], [the owner of the uninvited ox is liable.] If [his ox] is tam, [its owner] must pay half the damages. If it is mu'ad, he must pay the entire damages, as if it had gored [the other ox] in the public domain.9

ד

הַמַּכְנִיס שׁוֹרוֹ לַחֲצַר בַּעַל הַבַּיִת שֶׁלֹּא בִּרְשׁוּת וּנְגָחוֹ שׁוֹרוֹ שֶׁל בַּעַל הַבַּיִת אוֹ נְשָׁכוֹ כַּלְבּוֹ פָּטוּר. וְאִם נָגַח הוּא שׁוֹר שֶׁל בַּעַל הַבַּיִת. אִם הָיָה תָּם מְשַׁלֵּם חֲצִי נֵזֶק וְאִם הָיָה מוּעָד מְשַׁלֵּם נֵזֶק שָׁלֵם כְּדִין הַנּוֹגֵחַ בִּרְשׁוּת הָרַבִּים:

5

[In the above situation, the following rules apply if the uninvited ox] falls into a cistern in this courtyard and spoils its water. If it spoiled the water immediately upon falling within,10 [the owner of the ox] is liable for the loss caused by the ruining of the water. If [the water] was not spoiled until afterwards,11 [the owner] is not liable. [The rationale is that] the ox is considered to be an obstruction in the cistern, and the water is considered to be a utensil. And one is never liable for damage to utensils caused by an obstruction.12 If [the owner of the ox received] permission to bring in his ox, the owner of the ox is not liable for any damage the ox caused.13 If the owner of the courtyard accepted responsibility for the ox,14 he is liable for the damages it suffers from falling into the cistern.

ה

נָפַל לְבוֹר שֶׁבְּחָצֵר זוֹ וְהִבְאִישׁ אֶת מֵימָיו. אִם הִבְאִישׁ אֶת מֵימָיו מִיָּד בִּשְׁעַת נְפִילָה חַיָּב בְּנִזְקֵי הַמַּיִם. וְאִם אַחַר זְמַן פָּטוּר. שֶׁהֲרֵי נַעֲשָׂה הַשּׁוֹר תַּקָּלָה כְּבוֹר וְהַמַּיִם הֲרֵי הֵן כְּכֵלִים וְלֹא מָצִינוּ בּוֹר שֶׁחִיֵּב בּוֹ אֶת הַכֵּלִים. וְאִם הִכְנִיס בִּרְשׁוּת בַּעַל הַשּׁוֹר פָּטוּר. וְאִם קִבֵּל עָלָיו בַּעַל הַבַּיִת לִשְׁמֹר הֲרֵי הוּא חַיָּב בְּנֵזֶק הַשּׁוֹר שֶׁנָּפַל לַבּוֹר:

6

[The following rules also apply when] a person brings his ox into a courtyard belonging to another person without his permission. If the [uninvited ox] injures the owner of the courtyard, the owner of the courtyard suffers injury [because of the ox], or [the ox] digs pits or trenches, or burrows in the courtyard, the owner of the ox is liable for the damage to the courtyard [or to the owner]. [If another person] is injured because of these pits,15 the owner of the courtyard is liable, for it is his responsibility to fill them up.

ו

הִכְנִיס שׁוֹרוֹ לַחֲצַר בַּעַל הַבַּיִת שֶׁלֹּא בִּרְשׁוּת וְהִזִּיק אֶת בַּעַל הַבַּיִת. אוֹ שֶׁהֻזַּק בּוֹ בַּעַל הַבַּיִת. אוֹ שֶׁחָפַר בֶּחָצֵר בּוֹרוֹת שִׁיחִין וּמְעָרוֹת. בַּעַל הַשּׁוֹר חַיָּב בְּנִזְקֵי חָצֵר וּבַעַל חָצֵר חַיָּב בְּנִזְקֵי הַבּוֹר שֶׁהֲרֵי עָלָיו לְסָתְמוֹ:

7

[The following rules apply if] the owner of the courtyard damaged the ox: If he caused the damage unknowingly, he is not liable. For he can tell [the owner of the ox], "Why did you bring [your ox] in without permission. I was not aware of it until I [damaged it] unknowingly."16 If he caused the damage knowingly, he is liable for the full extent of the damage. He has the right to take the [intruding animal] out of his property; he does not have the right to damage it.

ז

הִזִּיק בַּעַל הַבַּיִת אֶת הַשּׁוֹר. אִם הִזִּיקוֹ שֶׁלֹּא לְדַעַת פָּטוּר. שֶׁהֲרֵי אוֹמְרִין לוֹ לָמָּה נִכְנַסְתָּ שֶׁלֹּא בִּרְשׁוּת. שֶׁלֹּא יָדַעְתִּי עַד שֶׁשָּׁגַגְתִּי בְּךָ. וְאִם הִזִּיקוֹ לְדַעַת חַיָּב נֵזֶק שָׁלֵם. מִפְּנֵי שֶׁיֵּשׁ לוֹ רְשׁוּת לְהוֹצִיאוֹ מֵרְשׁוּתוֹ אֲבָל לְהַזִּיקוֹ אֵין לוֹ רְשׁוּת:

8

We evaluate the amount of damages caused. What is implied? If either a person or his ox broke a utensil belonging to a colleague, we do not tell the person who caused the damage, "Take the broken utensil and pay its worth to its owner."17 Instead, we evaluate the loss caused to the utensil. This amount is paid by the person who caused the damage. [If the damage was caused by his ox, and the ox] was mu'ad, he is liable for the full amount of the damages. If it is tam, he is liable for half the damages.[This is implied by Exodus 21:36]: "And the carcass will be his" - i.e., it belongs to the one whose property was damaged. If the carcass loses value, the person whose property was damaged suffers the loss. If its value rises, the increase is divided between the person who caused the damage and the person whose property was damaged.

ח

שָׁמִין לִנְזָקִין. כֵּיצַד. הֲרֵי שֶׁשָּׁבַר כְּלִי שֶׁל חֲבֵרוֹ בֵּין הוּא בֵּין בְּהֶמְתּוֹ אֵין אוֹמְרִין לַמַּזִּיק קַח אַתָּה הַכְּלִי הַשָּׁבוּר וְשַׁלֵּם לָזֶה דְּמֵי הַכְּלִי אֶלָּא אוֹמְדִין כַּמָּה פָּחַת הַכְּלִי מִדָּמָיו וְנוֹתֵן לוֹ כָּל הַפְּחָת אִם הַמַּזִּיק מוּעָד אוֹ חֲצִי הַפְּחָת אִם הָיָה תָּם שֶׁנֶּאֱמַר (שמות כא לד) "וְהַמֵּת יִהְיֶה לּוֹ" לַנִּזָּק. פְּחַת הַנְּבֵלָה עַל הַנִּזָּק. וְשֶׁבַח הַנְּבֵלָה חוֹלְקִין אוֹתוֹ הַנִּזָּק וְהַמַּזִּיק:

9

What is implied? When an ox that is worth 200 [zuz] is gored and dies - its carcass was worth 100 [zuz] at the time of its death,18 but at the time of the trial, it decreased in value and was worth only 80. [In such an instance,] the person whose [ox] caused the damage is required to pay only 100 [zuz],19 if [the ox] was mu'ad. If it was a tam, the owner is required to pay only 50 [zuz] from the body of the ox.

ט

כֵּיצַד. שׁוֹר שָׁוֵה מָאתַיִם שֶׁנְּגָחוּהוּ וּמֵת וַהֲרֵי הַנְּבֵלָה שָׁוָה בִּשְׁעַת מִיתָה מֵאָה וּבִשְׁעַת הַעֲמָדָה בַּדִּין פָּחֲתָה וַהֲרֵי שָׁוָה שְׁמוֹנִים. אֵין הַמַּזִּיק מְשַׁלֵּם אֶלָּא מֵאָה אִם הָיָה מוּעָד. וְאִם הָיָה תָּם מְשַׁלֵּם לוֹ חֲמִשִּׁים מִגּוּפוֹ:

10

If the value of the carcass increased, and it is worth 120 [zuz] at the time of the trial, the one who caused the damage must pay 9020 if the ox was mu'ad, and 45 from the body of the ox if it was a tam. [This is implied by Exodus 21:35]: "And they shall also divide the dead [ox]" - i.e., they shall divide the profit from the dead ox.21

י

הִשְׁבִּיחָה הַנְּבֵלָה וַהֲרֵי הִיא שָׁוָה בִּשְׁעַת הַעֲמָדָה בַּדִּין מֵאָה וְעֶשְׂרִים. הֲרֵי הַמַּזִּיק מְשַׁלֵּם לוֹ תִּשְׁעִים אִם הָיָה מוּעָד. וְאִם הָיָה תָּם מְשַׁלֵּם אַרְבָּעִים וַחֲמִשָּׁה מִגּוּפוֹ וְזֶהוּ שֶׁנֶּאֱמַר (שמות כא לה) "וְגַם אֶת הַמֵּת יֶחֱצוּן" [שֶׁבַח הַמֵּת יֶחֱצוּן]:

11

[The amount that the person whose ox caused the damage must pay is subject to change in some, but not in all, circumstances. To illustrate:] An ox that was worth 200 [zuz] gored another ox worth 200 [zuz], causing it to depreciate 50 [zuz]. At the time of the trial, its value increased and it was worth 400 zuz. If, however, it had not been gored, it would have been worth 800 [zuz]. Whether its value increased because it was fattened or because of market fluctuations,22 the damages are evaluated according to the loss at the time the damage took place.23 If the ox became weak because of the injury it received and the damages amounted to 100 zuz at the time of the trial, the damages are evaluated according to the loss at the time of the trial.24

יא

שׁוֹר שָׁוֶה מָאתַיִם שֶׁנָּגַח שׁוֹר שָׁוֶה מָאתַיִם וְהִפְחִיתוֹ חֲמִשִּׁים וּבִשְׁעַת הַעֲמָדָה בַּדִּין הִשְׁבִּיחַ הַנִּזָּק וַהֲרֵי הוּא שָׁוֶה אַרְבַּע מֵאוֹת זוּז וְאִלּוּלֵא הַנְּגִיחָה שֶׁהִפְחִיתוֹ הָיָה שָׁוֶה שְׁמוֹנֶה מֵאוֹת. בֵּין שֶׁפִּטְּמוֹ בֵּין שֶׁשִּׁבֵּחַ מֵאֵלָיו אֵין נוֹתֵן אֶלָּא כִּשְׁעַת הַנֵּזֶק. כִּחֵשׁ מֵחֲמַת הַמַּכָּה בִּשְׁעַת הַעֲמָדָה בַּדִּין וַהֲרֵי הַפְּחָת שָׁוֶה מֵאָה נוֹתֵן לוֹ כִּשְׁעַת הַעֲמָדָה בַּדִּין:

12

[The following rules apply if] the value of the ox that caused the damage increased at the time of the trial.25 If its value increased because the owner fattened it, only its value at the time it caused the damage is considered to be on lien for payment.26 If its value increased because of market fluctuations, half of the damages may be collected from its value at the time of the trial.27

יב

הִשְׁבִּיחַ הַמַּזִּיק בִּשְׁעַת הַעֲמָדָה בַּדִּין. אִם מֵחֲמַת שֶׁפִּטְּמוֹ שִׁבֵּחַ אֵינוֹ מִשְׁתַּלֵּם מִמֶּנּוּ אֶלָּא מַה שֶּׁהָיָה שָׁוֶה בְּשָׁעָה שֶׁהִזִּיק. וְאִם מֵחֲמַת עַצְמוֹ הִשְׁבִּיחַ מִשְׁתַּלֵּם חֲצִי נֵזֶק מִמֶּנּוּ כֻּלּוֹ כִּשְׁעַת הַעֲמָדָה בַּדִּין:

13

It is the responsibility of the person who caused the damage to make the effort to bring the carcass of the ox that was damaged to the person [whose ox] was damaged. What is implied? An ox fell into a cistern and died. [The owner of the cistern] must raise the carcass [of the ox]28 from the cistern and give it to its owner. Then we evaluate the extent of the loss.[This is derived from Exodus 21:34]: "He shall give monetary recompense to the owners, and the carcass will be [the owners']." This teaches that he is obligated to return the carcass and the decrease in the value of the ox [from the time]29 when it was alive, to its owner. If [the ox that caused the damage was a tam], [its owner is required to pay only] half the damages, as explained above.30

יג

עַל הַמַּזִּיק לִטְרֹחַ בַּנְּבֵלָה עַד שֶׁמַּמְצִיא אוֹתָהּ לַנִּזָּק. כֵּיצַד. כְּגוֹן שֶׁנָּפַל הַשּׁוֹר לַבּוֹר וּמֵת מַעֲלֶה הַנְּבֵלָה מִן הַבּוֹר וְנוֹתְנָהּ לַנִּזָּק וְאַחַר כָּךְ שָׁמִין לוֹ פְּחַת נְבֵלָה שֶׁנֶּאֱמַר (שמות כא לד) "כֶּסֶף יָשִׁיב לִבְעָלָיו וְהַמֵּת יִהְיֶה לּוֹ". מְלַמֵּד שֶׁהוּא חַיָּב לְהָשִׁיב אֶת הַנְּבֵלָה וְאֶת הַפְּחָת שֶׁפָּחֲתָה מִן הַחַי לַנִּזָּק. וְאִם הָיָה תָּם חֲצִי הַפְּחָת. כְּמוֹ שֶׁבֵּאַרְנוּ:

Footnotes
1.

I.e., with a gate that can withstand an ordinary wind. According to the Shulchan Aruch (Choshen Mishpat 396:1), this halachah is speaking about guarding the animal in an inferior manner as explained in the notes to Chapter 4, Halachah 4. If the animal is guarded in an excellent manner, there is no liability.

2.

According to the Rambam, the owner is not liable for even half the damages. Rabbenu Asher and others differ. According to their view, since he did guard the ox to some degree, he is not liable for the full damages. He is, however, liable for half the damages, for there is no reason why the laws governing him should be more lenient than those governing an ordinary ox. See Sefer Me'irat Einayim 396:1.

3.

Note the Rambam's Commentary on the Mishnah (Bava Kama, conclusion of Chapter 4), which states that since this ox frequently gores, it is a mitzvah to slaughter it.

4.

Since the ox is considered to be a tam with regard to one element of goring, the owner is never freed from the obligation to pay the half damages that the owner of an ordinary ox would pay.

5.

Although these principles are stated in the Torah explicitly with regard only to damage done to another animal, Bava Kama 33a explains how an equation to human injury is derived.

6.

For Leviticus 24:19, the source for the laws applying to human injury, states: When a man will cause a blemish to a colleague.... Implied is that these laws apply only when the injury is caused by another man.

7.

Hilchot Chovel UMazik 1:1,9.

8.

A human being is not liable in these instances. The rationale is that he is liable for capital punishment for injuring his parents or desecrating the Sabbath. Whenever a person incurs both liability for capital punishment and monetary restitution with the performance of a single deed, he is freed of responsibility for the monetary claim. See Hilchot Chovel UMazik 4:5,7.

9.

The words as if it had gored in the public domain refer to the fact that the owner of an ox that is tam pays for only half the damages. One might draw a comparison to the damage caused by eating or treading, in which instance the owner of the ox is not held liable for damage caused in the public domain, but he is liable for the entire amount of damages caused in the domain of the owner of the produce. To counter this hypothesis, the Rambam emphasizes that with regard to goring, one is liable as in the public domain, but not more.

10.

E.g., the ox was covered with filth at the time it fell into the cistern.

11.

E.g., the ox spoiled it with its wastes.

12.

See Chapter 13, Halachah 1.

13.

The Ra'avad questions the Rambam's ruling, maintaining that, as stated in Chapter 1, Halachot 8-9, when an ox causes damage in a courtyard belonging jointly to its owner and another person, the owner of the ox is liable for the damage it causes. Why then, asks the Ra'avad, is the owner of the ox not liable in this situation? The Shulchan Aruch (Choshen Mishpat 398:5), however, quotes the Rambam's ruling.

14.

As mentioned in the notes on Chapter 3, Halachot 13-15, the Tur differs with Rambam and maintains that granting the owner of the ox permission to bring his ox into the courtyard is equivalent to accepting responsibility for any damage to it caused by the owner or his property. With regard to damages caused by others, however, the owner of the courtyard is not liable unless he accepts responsibility. The Shulchan Aruch (loc. cit.) quotes the Rambam's wording, while the Ramah follows the perspective of the Tur.

15.

The Maggid Mishneh and Sefer Me'irat Einayim 398:2 state that the owner of the courtyard is generally not liable for the injury another person suffered because of these pits, since he can always claim: Who gave you permission to enter my property? Only when the owner gives up ownership of his property or gives others the right to enter is he liable.

16.

This phrase has attracted the attention of the commentaries, for it implies that if the owner of the courtyard knew that the animal had entered his property, he would be liable even when he caused the damage accidentally. From Hilchot Chovel UMazik 1:16, 6:3, however, it appears that he would not be liable in such an instance. See Migdal Oz, Lechem Mishneh.

17.

Note the contrast to Hilchot Geneivah 1:15. See Sefer Me'irat Einayim 403:1.

18.

The Tur maintains that the time that is significant is not the time of the animal's death, but the time when its owner is notified regarding its death. Until that time, the one who caused the damage is responsible for the loss. The Ramah (Choshen Mishpat 403:2) mentions this view.

19.

And not 120.

20.

I.e., the 100 zuz that the owner of the ox lost, minus 10 zuz, which is the share of the profit given to the person who caused the damage.

21.

The Tur and the Ramah (Choshen Mishpat 403:2) emphasize that although the person who caused the damage is given a share in the value of the dead ox, this applies only with regard to the loss. If the price of meat rises to the extent that the meat of the ox is worth more than the ox was worth when it was alive, the one who caused the damages is not given a share of the profits.

22.

I.e., the price of cattle increased.

23.

I.e., 50 zuz if the ox was mu'ad. With regard to the larger sum, the matter is considered one of grama, an indirect cause of damage. Therefore, the owner of the ox is not liable (Sefer Me'irat Einayim 404:2).

24.

Tosafot, Bava Kama 10b draws a distinction between this instance and Halachah 8, which states that the increased loss to the carcass is suffered by its owner. The rationale for this distinction is that once the ox died, its owner should have sold it immediately. In this instance, since the ox was still alive, its owner thought that it would recover and that the loss would be less.

25.

This increase is significant, because the owner of the ox that was damaged can collect the payment (half of the damage) for the damages, only from the body of the ox that caused the damage. Thus, if the damage to an ox was 200 zuz, and the ox that caused the damage was worth only 80 zuz, the fact that its value increased to 100 zuz could affect the amount the owner of the damaged ox receives.

26.

I.e., in the above instance, the payment would be only 80 zuz. The rationale is that the owner of the ox who caused the damage will say: Did I fatten my ox so that you will take the profit?The Tur and the Ramah (Choshen Mishpat 404:2) differ and maintain that if the increase in the value of the ox exceeds the cost of fattening it, the cost of fattening it is deducted from its value, and the person whose ox was damaged receives half of the difference.

27.

I.e., in the above instance, the payment would be 100 zuz. The rationale is that since the body of the ox that caused the damage is on lien for the damages, and now that body is worth 100 zuz, the entire amount may be expropriated. Note the Or Sameach, who emphasizes that although the payment is taken from the body of the ox that caused the damages, the lien is not established until the time of the trial. Thus, if the owner of the ox that caused the damage consecrates it, it is consecrated, and the owner of the damaged ox receives no payment at all.

28.

The Tur (Choshen Mishpat 403) writes that although the responsibility to raise the ox is that of the owner of the cistern, if the owner of the ox becomes aware that his ox fell into the cistern, he must raise it and then bill the owner of the cistern for his costs. Sefer Me'irat Einayim 403:8 quotes this ruling.

29.

It is as if the verse reads He shall give monetary recompense and the carcass to the owners (Bava Kama 10b).

30.

Halachah 8.

Hilchot Nizkei Mamon - Chapter Eight

1

When an ox belonging to an Israelite gores an ox that was consecrated1 or an ox that was consecrated gores an ox belonging to an Israelite, [the owner of the goring ox] is not liable, [as implied by Exodus 21:35]: "[If one person's ox injures] an ox belonging to a colleague...."2 All consecrated entities for which one is held liable for using them for one's own purposes3 are not bound by the laws of damages.4 Animals that were consecrated and then disqualified5 are bound by the laws of damages. This applies regardless of whether it is they who cause the damage, or they who are damaged. For they have been redeemed and can be considered ordinary.6

א

שׁוֹר שֶׁל יִשְׂרָאֵל שֶׁנָּגַח שׁוֹר שֶׁל הֶקְדֵּשׁ אוֹ שׁוֹר שֶׁל הֶקְדֵּשׁ שֶׁנָּגַח שׁוֹר שֶׁל יִשְׂרָאֵל פָּטוּר שֶׁנֶּאֱמַר (שמות כא לה) "שׁוֹר רֵעֵהוּ". וְכָל הַקָּדָשִׁים שֶׁחַיָּבִין בָּהֶן מְעִילָה אֵין בָּהֶן דִּין נְזָקִין. וּפְסוּלֵי הַמֻּקְדָּשִׁין יֵשׁ בָּהֶן דִּין נְזָקִין בֵּין שֶׁהִזִּיקוּ בֵּין שֶׁהֻזְּקוּ שֶׁהֲרֵי יָצְאוּ לַפִּדְיוֹן וְלִהְיוֹתָם חֻלִּין:

2

When [an animal consecrated for] a peace offering causes damage, the damages may be collected from its meat.7 [The person whose property was damaged] does not, however, collect his due from the portions burned on the altar. For the prohibition against using consecrated property for one's own purposes applies to the portions of sacrifices of lesser sanctity8 burned on the altar, as explained in Hilchot Me'ilah.9 Similarly, [if an animal consecrated for] a thanksgiving offering causes damage, the damages may be collected from its meat. They may not, however, be collected from the bread that accompanies it,10 for the bread is not considered to be part of the meat.

ב

שְׁלָמִים שֶׁהִזִּיקוּ גּוֹבֶה מִבְּשָׂרָם וְאֵינוֹ גּוֹבֶה מִן הַבָּשָׂר כְּנֶגֶד אֵימוּרֵיהֶן. שֶׁהָאֵימוּרִים שֶׁל קָדָשִׁים קַלִּים מוֹעֲלִין בָּהֶן כְּמוֹ שֶׁבֵּאַרְנוּ בְּהִלְכוֹת מְעִילָה. וְכֵן תּוֹדָה שֶׁהִזִּיקָה גּוֹבֶה מִבְּשָׂרָהּ וְאֵינוֹ גּוֹבֶה מִן הַלֶּחֶם הַבָּא עִמָּהּ שֶׁאֵין הַלֶּחֶם מִכְּלַל בָּשָׂר:

3

How can [the person whose property was damaged] collect [his due]? He and his company should eat, in a holy manner, a portion of the meat equivalent to half the damages he suffered.11 What is meant by the statement that [the person whose property was damaged] does not, however, collect his due from the portions burned on the altar? That if half the damages he suffered was equivalent to a dinar, and the meat and the portions to be offered on the altar together were worth two dinarim, but the meat without the portions to be offered was worth only a dinar and a half, [the person whose property was damaged] receives only half the meat, and not two thirds of the meat.

ג

וְכֵיצַד גּוֹבֶה. שֶׁיֹּאכַל הַנִּזָּק וַחֲבוּרָתוֹ מִן הַבָּשָׂר בִּקְדֻשָּׁה כְּנֶגֶד חֲצִי נֵזֶק שֶׁלּוֹ. וְכֵיצַד אֵינוֹ גּוֹבֶה כְּנֶגֶד הָאֵימוּרִין. שֶׁאִם הָיָה לוֹ לִגְבּוֹת בַּחֲצִי נִזְקוֹ שְׁוֵה דִּינָר וְהָיָה כָּל הַבָּשָׂר עִם הָאֵימוּרִין שָׁוֶה שְׁנֵי דִּינָרִים וְהַבָּשָׂר בְּלֹא אֵימוּרִין שָׁוֶה דִּינָר וָחֵצִי אֵינוֹ גּוֹבֶה שְׁנֵי שְׁלִישִׁי הַבָּשָׂר אֶלָּא חֲצִי הַבָּשָׂר בִּלְבַד:

4

Similarly, an ox that is ownerless and causes damage is also not held responsible for the damage it causes. [This is also derived from the phrase,] "an ox belonging to a colleague," implying that the ox must be defined as the property of an owner. What is implied? When an ox that is ownerless gores [another ox], and before the person whose property was damaged takes possession of [the goring ox] another person does so, that other person is not liable for the damages.12Moreover, even if an ox that is defined as the property of an owner causes damage, and afterwards the owner consecrates it or declares it ownerless, [payment is] not expropriated [from the body of the ox]. [For payment to be expropriated], it must be owned by one person at the time it caused the damage and at the time of the the trial.13

ד

וְכֵן שׁוֹר הֶפְקֵר שֶׁהִזִּיק פָּטוּר שֶׁנֶּאֱמַר (שמות כא לה) "שׁוֹר רֵעֵהוּ" עַד שֶׁיִּהְיוּ הַנְּכָסִים מְיֻחָדִים לַבְּעָלִים. כֵּיצַד. שׁוֹר הַהֶפְקֵר שֶׁנָּגַח וְקֹדֶם שֶׁיִּתְפּשֹׁ אוֹתוֹ הַנִּזָּק בָּא אַחֵר וְזָכָה בּוֹ הֲרֵי זֶה פָּטוּר. וְלֹא עוֹד אֶלָּא שׁוֹר הַמְיֻחָד לַבְּעָלִים שֶׁהִזִּיק וְאַחַר שֶׁהִזִּיק הַקְדִּישׁוֹ אוֹ הִפְקִירוֹ הֲרֵי זֶה פָּטוּר עַד שֶׁיִּהְיוּ לוֹ בְּעָלִים בִּשְׁעַת הֶזֵּקוֹ וּבִשְׁעַת הַעֲמָדָה בַּדִּין:

5

When an ox - whether a tam or a mu'ad - belonging to a Jew gores an ox belonging to a gentile, [the Jew] is not liable. [The rationale is] that the gentiles do not hold a person responsible for damage caused by his livestock.14 Therefore we judge this case according to their laws.15 When, by contrast, an ox - whether a tam or a mu'ad - belonging to a gentile gores an ox belonging to a Jew, [the gentile] must pay the entire amount of the damages. This is a penalty imposed upon the gentiles because they are not careful about [the observance of] the mitzvot,16 and they do not remove factors that can cause damage. If we will not hold them liable for the damage caused by their animals, they will not guard them, and [the animals] will destroy other people's property.

ה

שׁוֹר שֶׁל יִשְׂרָאֵל שֶׁנָּגַח שׁוֹר שֶׁל עַכּוּ''ם בֵּין תָּם בֵּין מוּעָד פָּטוּר. לְפִי שֶׁאֵין הָעַכּוּ''ם מְחַיְּבִין אֶת הָאָדָם עַל בְּהֶמְתּוֹ שֶׁהִזִּיקָה וַהֲרֵי אָנוּ דָּנִין לָהֶם כְּדִינֵיהֶם. וְשׁוֹר שֶׁל עַכּוּ''ם שֶׁנָּגַח שֶׁל יִשְׂרָאֵל בֵּין תָּם בֵּין מוּעָד מְשַׁלֵּם נֵזֶק שָׁלֵם. קְנָס הוּא זֶה לְעַכּוּ''ם לְפִי שֶׁאֵינָן זְהִירִין בְּמִצְוֹת וְאֵינָן מְסַלְּקִין הַנֵּזֶק וְאִם לֹא תְּחַיֵּב אוֹתָן עַל נִזְקֵי בְּהֶמְתָּן אֵין מְשַׁמְּרִין אוֹתָהּ וּמַפְסִידִין מָמוֹן הַבְּרִיּוֹת:

6

When an ox that is tam causes damage and then is sold by its owner before the trial takes place, the person whose property was damaged may collect his due from it17 despite the fact that it was sold.18 Afterwards, the purchaser should collect that sum from the [previous] owner who sold it to him. [The rationale for this ruling is]19 that once an ox has gored, the matter becomes known, and the purchaser should not have purchased the animal until the one whose property was damaged had collected his due.

ו

שׁוֹר תָּם שֶׁהִזִּיק אִם מְכָרוֹ הַמַּזִּיק עַד שֶׁלֹּא עָמַד בַּדִּין אַף עַל פִּי שֶׁהוּא מָכוּר הֲרֵי הַנִּזָּק גּוֹבֶה הֵימֶנּוּ וְחוֹזֵר הַלּוֹקֵחַ וְגוֹבֶה מִן הַמַּזִּיק שֶׁמָּכַר לוֹ. שֶׁכֵּיוָן שֶׁנָּגַח קוֹל יֵשׁ לוֹ וְלֹא הָיָה לוֹ לַלּוֹקֵחַ לִקַּח עַד שֶׁיִּגְבֶּה הַנִּזָּק:

7

If [the owner of an ox that] caused damage consecrates [the ox], it is consecrated. [This law was instituted] so that people will not say, "An animal that was consecrated can lose its status without being redeemed."20 [If the owner] slaughters the ox, [the person whose property was damaged] may collect his due from the meat.21 [If the owner] gives it away as a present, [the present] is binding,22 but [the person whose property was damaged] may collect his due from [the animal].

ז

הִקְדִּישׁוֹ הַמַּזִּיק הֲרֵי זֶה מֻקְדָּשׁ כְּדֵי שֶׁלֹּא יֹאמְרוּ הֶקְדֵּשׁ יוֹצֵא בְּלֹא פִּדְיוֹן. שְׁחָטוֹ גּוֹבֶה מִבְּשָׂרוֹ. נְתָנוֹ בְּמַתָּנָה מַה שֶּׁעָשָׂה עָשׂוּי וְיִגְבֶּה הַנִּזָּק מִמֶּנּוּ:

8

If [an ox] caused damage, there was a trial, and afterwards, [the owner] sold it, the sale is of no consequence. If he consecrated it, it is not consecrated, and if he gave it away as a present, the present is of no consequence.23 If the creditors of the owner [of the ox] seize it first, [to collect their due from it], they are not entitled to retain possession. Instead, the person whose property was damaged collects his due from it. This applies whether the debt was undertaken before the damage was done24 or afterwards. [The rationale is] that even if it belonged to the creditors at the outset and caused damage, [the person whose property was damaged] would be entitled to collect his due.25

ח

הִזִּיק וְעָמַד בַּדִּין וְאַחַר כָּךְ מְכָרוֹ אֵינוֹ מָכוּר. הִקְדִּישׁוֹ אֵינוֹ מֻקְדָּשׁ. נְתָנוֹ בְּמַתָּנָה לֹא עָשָׂה וְלֹא כְּלוּם. קָדְמוּ בַּעֲלֵי חוֹבוֹת שֶׁל מַזִּיק וּתְפָסוּהוּ בֵּין שֶׁחָב עַד שֶׁלֹּא הִזִּיק בֵּין הִזִּיק עַד שֶׁלֹּא חָב לֹא זָכוּ אֶלָּא הַנִּזָּק גּוֹבֶה מִמֶּנּוּ שֶׁאֲפִלּוּ הָיָה שֶׁל בַּעֲלֵי חוֹבוֹת מִתְּחִלָּה וְהִזִּיק הֲרֵי זֶה גּוֹבֶה מִגּוּפוֹ:

9

[The following rules apply when] an ox that is mu'ad causes damage: Regardless of whether the trial took place already or not, if [the owner] has consecrated it, sold it, given it as a present or slaughtered it, his deed is binding. If the creditors of the owner lead [the ox] away before [the person whose property was damaged takes possession of it], they acquire it. [This applies] whether the debt owed them was made before the damage took place or afterwards.26 [The rationale is that] the person whose property was damaged is entitled to collect his due from the choicest property belonging to the owner. All of [the owner's] property is on lien because of the damage caused.27

ט

מוּעָד שֶׁהִזִּיק בֵּין עָמַד בַּדִּין בֵּין שֶׁלֹּא עָמַד בַּדִּין וְהִקְדִּישׁוֹ אוֹ מְכָרוֹ אוֹ נְתָנוֹ בְּמַתָּנָה אוֹ שְׁחָטוֹ. מַה שֶּׁעָשָׂה עָשׂוּי. קָדְמוּ בַּעֲלֵי חוֹבוֹת וְהִנְהִיגוּהוּ בֵּין חָב עַד שֶׁלֹּא הִזִּיק בֵּין הִזִּיק עַד שֶׁלֹּא חָב זָכוּ בּוֹ. לְפִי שֶׁאֵין מִשְׁתַּלֵּם הַנִּזָּק אֶלָּא מִן הַמְעֻלֶּה שֶׁבְּנִכְסֵי הַמַּזִּיק וַהֲרֵי כָּל נְכָסָיו מְשֻׁעְבָּדִין לְנֶזֶק זֶה:

10

When, for the person whose property was damaged, the court is required to expropriate property belonging to the person who caused the damage,28 his movable property should be expropriated first.29 If he does not own any movable property, or the property he owns is not sufficient to pay for all the damages, the remainder should be expropriated from the choicest properties he owns. As long as movable property is found, even property of inferior quality,30 landed property should not be expropriated.

י

כְּשֶׁבֵּית דִּין נִזְקָקִין לִגְבּוֹת לַנִּזָּק מִנִּכְסֵי הַמַּזִּיק גּוֹבִין מִן הַמִּטַּלְטְלִין תְּחִלָּה וְאִם לֹא הָיוּ לוֹ מִטַּלְטְלִין כְּלָל אוֹ שֶׁלֹּא הָיוּ לוֹ מִטַּלְטְלִין כְּנֶגֶד כָּל הַנֵּזֶק גּוֹבִין הַשְּׁאָר מִן הַקַּרְקַע הַמְעֻלָּה שֶׁבְּנִכְסֵי הַמַּזִּיק. וְכָל זְמַן שֶׁיִּמְצְאוּ מִטַּלְטְלִין וַאֲפִלּוּ סֻבִּין אֵין נִזְקָקִין לַקַּרְקַע:

11

If the person who caused the damage dies before he pays, the court does not expropriate the movable property belonging to his heirs. Instead, [they expropriate] the landed property [in the estate], taking that of least value.31 [The rationale is that] the person whose property was damaged becomes one of the creditors [of the person who caused the damage], and movable property is never considered to be on lien to a creditor. If the person whose property was damaged [seized] possession of movable property [belonging to] the person who caused the damage in the latter's lifetime, payment for the damages may be collected from this [movable property] after his death.

יא

מֵת הַמַּזִּיק קֹדֶם שֶׁיְּשַׁלֵּם אֵין בֵּית דִּין נִזְקָקִין לַמִּטַּלְטְלִין שֶׁל יְתוֹמִים אֶלָּא לַקַּרְקַע. וְגוֹבִין לַנִּזָּק מִן הַזִּבּוּרִית. מִפְּנֵי שֶׁהַנִּזָק נַעֲשָׂה כְּבַעַל חוֹב וְהַמִּטַּלְטְלִין אֵינָן מְשֻׁעְבָּדִין לְבַעַל חוֹב. וְאִם תָּפַס הַנִּזָּק הַמִּטַּלְטְלִין בְּחַיֵּי הַמַּזִּיק גּוֹבִין לוֹ מֵהֶם לְאַחַר מוֹתוֹ:

12

The Geonim have already ordained that a debt owed a creditor can be expropriated from the movable property [in the estate].32 This ruling has been accepted by all the [Jewish] courts of law.33 Therefore, damages may also be expropriated from movable property left to heirs. If [the deceased] did not leave any movable property, [the creditor] may expropriate the landed property of least value. For as explained [in the previous halachah], whenever a person seeks to expropriate property from heirs, he is given the property of the least value.

יב

כְּבָר תִּקְּנוּ הַגְּאוֹנִים לִגְבּוֹת בַּעַל חוֹב מִן הַמִּטַּלְטְלִין. וּפָשְׁטָה תַּקָּנָה זוֹ בְּכָל בָּתֵּי דִּינִין. לְפִיכָךְ מְגַבִּין הַנְּזָקִין מִן הַמִּטַּלְטְלִין שֶׁל יְתוֹמִים. וְאִם לֹא הִנִּיחַ מִטַּלְטְלִין גּוֹבִין לוֹ מִן הַזִּבּוּרִית שֶׁכָּל הַבָּא לִפָּרַע מִנִּכְסֵי יְתוֹמִים לֹא יִפָּרַע אֶלָּא מִן הַזִּבּוּרִית כְּמוֹ שֶׁבֵּאַרְנוּ:

13

Damages should not be collected, nor is an atonement fine imposed, nor is an animal executed34 unless definite proof is brought [as substantiated] by acceptable witnesses. We do not say that since only shepherds,35 servants,36 and the like are found in the stables of horses, the stalls of cattle and the corrals of sheep, their testimony should be accepted if they testify that one animal damaged another. Similarly, if minors or women37 testify that one person injured another or caused another type of damage, [one might think] that we rely on them. This is not so.38 Instead, financial redress is required because of the testimony of witnesses only when the witnesses are acceptable and fit to testify with regard to other matters, and they give testimony, [on which basis] the court obligates the one who caused the damage to pay.

יג

אֵין הַנְּזָקִין מִשְׁתַּלְּמִין וְאֵין חַיָּבִין בְּכֹפֶר וְאֵין הַבְּהֵמָה נֶהֱרֶגֶת אֶלָּא בִּרְאָיָה בְּרוּרָה וּבְעֵדִים הַכְּשֵׁרִים לְהָעִיד. שֶׁלֹּא תֹּאמַר הוֹאִיל וְאֵין מְצוּיִין בְּאֻרְווֹת הַסּוּסִים וּבְרֶפֶת הַבָּקָר וְגִדְרוֹת צֹאן אֶלָּא הָעֲבָדִים וְהָרוֹעִים וְכַיּוֹצֵא בָּהֶן אִם הֵעִידוּ שֶׁבְּהֵמָה זוֹ הִזִּיקָה אֶת זוֹ שׁוֹמְעִין לָהֶם וְאִם הֵעִידוּ קְטַנִּים אוֹ נָשִׁים שֶׁאָדָם זֶה חָבַל אֶת זֶה אוֹ הֵעִידוּ בִּשְׁאָר נְזָקִין סוֹמְכִין עֲלֵיהֶן. אֵין הַדָּבָר כֵּן. אֶלָּא אֵין מְחַיְּבִין לְעוֹלָם מָמוֹן עַל פִּי עֵדִים עַד שֶׁיִּהְיוּ עֵדִים הַכְּשֵׁרִים לְהָעִיד שְׁאָר עֵדֻיּוֹת וְיָעִידוּ וִיחַיְּבוּ בֵּית דִּין הַמַּזִּיק לְשַׁלֵּם:

14

When an ox was pasturing at the edge of a river, and another ox is found dead near him, even though the dead ox was gored, and this ox was prone to gore - or the dead ox was bitten and this ox was prone to bite - we do not say: "One can be certain that this bit it, or this gored it." Even if one of a group of camels is known to bite, and another camel is found dead at its side, we do not say that it is certain that this one killed it, unless the matter was observed by acceptable witnesses.39

יד

שׁוֹר שֶׁהָיָה רוֹעֶה עַל גַּבֵּי הַנָּהָר וְנִמְצָא שׁוֹר הָרוּג בְּצִדּוֹ. אַף עַל פִּי שֶׁזֶּה מְנֻגָּח וְזֶה מוּעָד לִגַּח זֶה מְנֻשָּׁךְ וְזֶה מוּעָד לִשַּׁךְ. אֵין אוֹמְרִים בְּיָדוּעַ שֶׁזֶּה נְשָׁכוֹ וְזֶה נְגָחוֹ. וַאֲפִלּוּ גָּמָל הָאוֹחֵר בֵּין הַגְּמַלִּים וְנִמְצָא [גָּמָל] הָרוּג בְּצִדּוֹ אֵין אוֹמְרִים בְּיָדוּעַ שֶׁזֶּה הֲרָגוֹ עַד שֶׁרָאוּהוּ עֵדִים כְּשֵׁרִים:

Footnotes
1.

I.e., the owner of the ox consecrated it to serve as a burned offering or a sin offering, or (if it was blemished) to donate its value to the Temple, but he did not bring it to the Temple as yet.

2.

One can infer that since the ox that is consecrated no longer belongs to a colleague, the laws that follow in the verse do not apply.

3.

See Hilchot Me'ilah, which describes these laws.

4.

For they are all considered to be consecrated unto God.

5.

See Hilchot Pesulei HaMukdashim, which describes when a consecrated animal is placed into this category.See Chapter 12, Halachah 21, from which it is evident that the liablity applies only when a disqualified animal was already redeemed. If it has not been redeemed, the owner is not liable.

6.

Although it is forbidden to work with, or shear these animals, they are still considered the private property of their owners and are thus an ox belonging to a colleague.

7.

Since the meat of a peace offering is eaten by the owners, the animal is still considered to be their personal property, despite the fact that it is consecrated. Therefore, payment for the damages can be expropriated from the meat.See the commentary of the Lechem Mishneh, who questions the apparent contradiction between the Rambam's ruling here and his ruling in Hilchot Geneivah 2:1.

8.

Those that may be eaten outside the Temple Courtyard.

9.

Hilchot Me'ilah 2:1.

10.

Forty loaves of bread are offered together with the thanksgiving offering. These are, however, considered to be a separate entity and are not on lien to the person whose property was damaged.

11.

I.e., as befits sacrifices of lesser sanctity.

12.

I.e., one might think that the person whose property was damaged might be entitled to expropriate the amount of the loss from the body of the ox. Nevertheless, since the ox was acquired by its present owner after the damage took place, he is not held responsible.

13.

Bava Kama 44b derives this concept from the exegesis of Exodus 21:29. If, however, the previous owner retakes possession of the ox, he is liable for the damages even though he declared it ownerless Tur and Shulchan Aruch (Choshen Mishpat 406:3). With regard to the sale of the ox, see Halachah 6. (See also Halachah 8 and notes.)

14.

The Ra'avad differs with the rationale stated by the Rambam, and objects because the gentiles seize animals in lieu of payment for the damage that they cause. The Ra'avad maintains that by speaking of a colleague's ox, the Torah excludes one belonging to a gentile. The Tur and the Shulchan Aruch (Choshen Mishpat 406:1) quote the Rambam's ruling.

15.

See Hilchot Melachim 10:12, which states:The following rules apply when there is a dispute between a Jew and an idolater: If the Jew will fare better according to their laws, they are judged according to their laws.... If the Jew will fare better according to our laws, they are judged according to Torah law.... It appears to me that this approach is not followed with regard to a resident alien. He is always judged according to their laws.See also the Rambam's Commentary on the Mishnah (Bava Kama 4:3), which echoes and expands upon this principle.

16.

It would appear that the intent of the word mitzvot, meaning commandments, is the seven universal laws commanded to Noach and his descendants. One of them is the law obligating societies to set up a system of civil law. See Bava Kama 38a.

17.

For the damages that an ox that is tam causes are collected from its body. Thus, it is as if the ox is on lien for the damages it caused.

18.

This implies that the sale is not nullified. The purchaser may plow with the ox directly after the purchase. Moreover, he cannot return it to the original owner because of the claim against it.

19.

I.e., why the purchaser is at all responsible for the damage the ox caused previously.

20.

Implied is that in essence the person whose property was damaged should be allowed to collect his due from the ox without redeeming it. Our Sages, however, did not allow this, because a person who knew that the ox was consecrated, but did not know that it had gored, might see it being given to the person whose property was damaged and think that an animal that was consecrated can lose its sacred status without being redeemed. Instead, they required that the person whose property was damaged redeem the ox for a minimal fee and then collect his due from it (Maggid Mishneh).The Chatam Sofer (Choshen Mishpat, Responsum 165) notes that there appears to be a contradiction between this halachah and Halachah 4. From Halachah 4, it appears that the person can consecrate the ox and thus totally nullify the lien of the person whose property was damaged. From this halachah, by contrast, it appears that the lien remains.In resolution, the Chatam Sofer makes a distinction between the sanctification of the value of the ox (as in this halachah), in which instance the lien remains, and the sanctification of the body of the ox (as in Halachah 4), in which instance the lien is nullified.

21.

The Tur and the Ramah (Choshen Mishpat 407:2) state that if the slaughter causes the value of the ox to depreciate, the owner must reimburse the person whose property was damaged for the loss.

22.

And therefore the recipient of the present may work with the animal.

23.

For the lien on the body of the ox possessed by the person whose property was damaged has now been firmly established. He thus becomes a partner in the ownership of the ox, and the original owner cannot carry out a sale without informing him.

24.

I.e., if the obligation were incumbent on the person whose ox caused the damage himself or on his property, those who had a prior claim would be entitled to take the ox as payment. In this instance, the obligation is associated with the body of the ox itself, and therefore the person whose property was damaged is entitled to the ox for the reason mentioned by the Rambam.

25.

The Rambam's ruling is quoted by the Shulchan Aruch (Choshen Mishpat 407:4). The Tur and the Ramah differ and state that if the owner of the ox had already designated the ox as payment for a specific debt that existed before the damage took place, that creditor has a right to the ox.

26.

According to Talmudic law, an earlier debt takes precedence over a later one with regard to landed property. With regard to movable property, by contrast, whichever creditor takes control of an asset first is entitled to it.

27.

This explains the fundamental difference between damage caused by a tam and a mu'ad. When a tam causes damage, its own body is on lien for the damage; the damage is not considered to be a debt owed by the owner of the ox. When, in contrast, a mu'ad causes damage, the opposite is true. The person whose property was damaged has no claim to the ox itself; his claim is borne by all the holdings of its owner.

28.

These laws, though applicable to damage caused by an ox that is mu'ad, apply to all other cases of damage for which a person is held responsible.

29.

Bava Kama 7b explains that movable property is considered to be easier to sell after it has been expropriated than landed property. Therefore, it is considered to be choicer and should be given priority.Sefer Me'irat Einayim 419:1 writes that the person who caused the damages has the prerogative of giving the person whose property he damaged movable property or landed property, whichever he desires. The Siftei Cohen 419:2 differs and states that according to the Rambam, the Beit Yosef and others, if the person who caused the damages possesses movable property, he must pay in movable property, regardless of whether or not he desires.

30.

The Hebrew term used by the Rambam literally means bran.As long as the person pays for the damage with movable property, the quality of the movable property with which he pays is of no consequence. The Hagahot Maimoniot state that according to the Rambam and Rabbenu Yitzchak Alfasi, even if the person who caused the damage possesses cash, he may pay the person whose property he damaged with movable property of inferior quality.Although there is debate concerning this concept among the commentaries, it is accepted as binding by the Shulchan Aruch (Choshen Mishpat 419:1).

31.

During the lifetime of the person who caused the damage, the choicest property in his holdings is expropriated. After his death, however, the status of the obligation changes, and the property of least value is expropriated (Gittin 48b).This law applies regardless of the age of the heirs, even if they are past majority (Maggid Mishneh; Siftei Cohen 419:7). See, however, Sefer Me'irat Einayim 419:5.

32.

In his gloss on Hilchot Ishut 16:7, the Maggid Mishneh explains that this ruling reflects a difference in the socio-economic status of the Jewish people. Land was commonly owned in the Talmudic period. In contrast, the ownership of land was less common in the era of the geonim. Movable property thus rose in importance, and a creditor would feel secure even when an obligation was supported only by movable property.

33.

Thus, although it is post-Talmudic in origin, it should be adhered to because of its universal acceptance. See, however, Hilchot Ishut 16:8.

34.

When an ox that is mu'ad kills a human being, the ox should be executed, and its owner is obligated to pay an atonement fine, as explained in Chapter 10. The Ra'avad explains that if a person admits that either he or his property caused damage, he is obligated for financial payment and for an atonement fine. His ox is not, however, executed because of his statements.

35.

Who are disqualified from serving as witnesses, because they are suspected of pasturing their flocks in fields belonging to other people, for this is equivalent to stealing (Hilchot Edut 10:4).

36.

Who are not acceptable witnesses (Hilchot Edut 9:2,4,7).

37.

Who are not acceptable witnesses (Hilchot Edut 9:2,4,7).

38.

The Ramah (Choshen Mishpat 35:14) writes that although this is the legal standard, it has already become customary to accept witnesses whose testimony would ordinarily be disqualified, if there is no way of finding witnesses who are acceptable. Note, however, Sefer Me'irat Einayim 35:30, which states that the Ramah's leniency does not apply with regard to damages.

39.

In this as in many other instances, the Rambam emphasizes that circumstantial evidence - no matter how indisputable - is not sufficient. According to Torah law, a claim can be established only through the testimony of witnesses. (See also Hilchot Chovel UMazik 5:4; Hilchot Sanhedrin 20:1, 24:1.)

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The Mishneh Torah was the Rambam's (Rabbi Moses ben Maimon) magnum opus, a work spanning hundreds of chapters and describing all of the laws mentioned in the Torah. To this day it is the only work that details all of Jewish observance, including those laws which are only applicable when the Holy Temple is in place. Participating in one of the annual study cycles of these laws (3 chapters/day, 1 chapter/day, or Sefer Hamitzvot) is a way we can play a small but essential part in rebuilding the final Temple.
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