QUESTIONS: The Gemara discusses the underlying mechanism of how three sets
of testimony make a Shor into a Shor ha'Mu'ad: Do they serve to make the
*Shor* Mu'ad ("Yi'udei Tora"), or do they serve to make the *owner* Mu'ad
("Yi'udei Gavra")? The practical difference exists in a case where all three
sets of witnesses come on the same day and testify that the Shor gored on
three different days in the past. Such testimony can make the *Shor* a Mu'ad
("Yi'udei Tora"), since it proves that the Shor has a tendency to gore. It
cannot make the *owner* Mu'ad ("Yi'udei Gavra"), though, since the owner has
not yet ignored Beis Din's warning to guard his Shor three times.
The Gemara proves that the purpose of the testimony is to make the *Shor* a
Mu'ad ("Yi'udei Tora"). It proves this from a Beraisa which teaches that if
three sets of witnesses testify that an ox gored on three different
occasions, and all of them turn out to be Edim Zomemin, then all six
witnesses must jointly pay the second half of the value of the payment that
they wanted to obligate the owner of the Shor to pay, the payment of a Shor
ha'Mu'ad, since they all intended to obligate him to pay that payment.
How can we be sure that the witnesses intended to cause the owner to have to
pay damages caused by a Shor ha'Mu'ad? Perhaps each set intended to cause
him to pay for damages caused by a Shor *Tam* (i.e. Chatzi Nezek)! It must
be that all three pairs of witnesses came together to testify that the Shor
was a Mu'ad as a result of three gorings that occurred on different days in
the past, as Rashi explains.
If such testimony is accepted, then it must be that the witnesses are
accomplishing "Yi'udei Tora," since the Shor becomes a Mu'ad even though the
owner was not warned on three separate occasions.
The Gemara asks that even if the testimony accomplishes "Yi'udei Tora," why
should the third set of witnesses have to share in the payment of the
Mu'ad-half of the payment? Why can they not claim that they were not aware
that the Shor had gored two times in the past, and they only came to make
the owner Chayav (Chatzi Nezek) for the goring that they saw on this
occasion?
Ravina answers that the third set of witnesses testify that they saw one of
the owner's oxen gore, but they are not sure which one it was. The owner
will not have to pay at all if the Shor is a Tam, since one only pays
"mi'Gufo" for damages of a Tam (and one of the oxen of the flock died or ran
away after the time of the goring and before the testimony, and thus the
owner can claim that it was the Shor that gored that died or ran away, as
Tosfos writes). Therefore, it must be that the witnesses intended to make
the Shor into a Mu'ad and make the owner pay Nezek Shalem ("Min ha'Aliyah"
and not "mi'Gufo").
There are a number of difficulties in this Sugya.
First, RASHI (DH Kulan) makes it clear that after the three sets of
witnesses testify, the owner must pay Nezek Shalem for the third goring. Why
should the Shor become a Mu'ad on the third goring? Earlier (23b), Rashi
explains that Rava and Abaye argue whether a Shor pays Nezek Shalem for the
third goring (Rava) or only for the fourth goring (Abaye). How will Abaye
explain this Beraisa which says that the Shor becomes a Mu'ad on the third
goring?
Second, if the third set of witnesses were not sure which ox gored, then how
can they make the Shor a Mu'ad to pay Nezek Shalem? They cannot prove that
the ox that gored this time already gored two times in the past!
ANSWERS: The Rishonim suggest two completely different ways of explaining
our Sugya, which, in turn, depend on the way they explain the Machlokes
between Rava and Abaye earlier (23b). Rashi there explains, as we mentioned,
that Rava makes the animal a Mu'ad on the third goring, and Abaye makes it a
Mu'ad only on the fourth. Consequently, when the Gemara (24a) says that
"Yi'udei Tora" can be accomplished when three sets of witnesses come in one
day, it must mean that the set which obligates the owner to pay for the
animal's damage as a Shor ha'Mu'ad can also come on the same day as the
first two sets of witnesses. It is not necessary to prove that the Shor has
the nature of a Mu'ad before the goring occurs for which the owner must pay
Nezek Shalem. Otherwise (according to Rava, which is the Halachic opinion),
the Gemara should have said that two sets of witnesses came on one day, and
if the ox gores afterwards, then the owner pays for it as a Mu'ad.
TOSFOS (23b, DH v'Lo) and the Rishonim point out that this is consistent
with neither logic nor with the verse. Logically, the reason the Shor must
be made into a Mu'ad is to warn the owner to guard his Shor properly. The
reason the owner pays Nezek Shalem if he does not guard it is because he did
not heed the warning of Beis Din. If three sets of witnesses testify in
court, on the same day, that there were three gorings, then the owner has
received no warning to guard his ox, and why should he pay Nezek Shalem
(even according to the view of "Yi'udei Tora")?
Moreover, the verse says, "v'Hu'ad b'Va'alav v'Lo Yishmerenu," implying that
the owner was warned to watch the ox but did not watch it.
Perhaps Rashi understood that according to the view that requires "Yi'udei
Tora," it is not necessary for the owner to receive an official warning from
Beis Din to watch his ox. Rather, the very fact that his ox gored is enough
to obligate him to watch his ox, since the owner is responsible to know
whether or not his ox has an irritable temperament. Therefore, even if the
witnesses testified in court on the same day about three gorings, the owner
could have prevented the third goring, and therefore he must pay Nezek
Shalem for any damages that were caused.
Tosfos and the other Rishonim disagree with Rashi's interpretation of Rava.
They write that both Abaye and Rava agree that the owner only starts to pay
Nezek Shalem on the *fourth* goring. (Some say that Abaye and Rava argue
only about "Mashma'us Dorshin," how to expound the verse, and there is no
practical difference between them.) Tosfos writes that Rashi himself later
retracted what he wrote here, and he himself explained the Gemara in this
manner. According to this interpretation, when the Gemara says that "Yi'udei
Tora" is accomplished by three testimonies on the same day, it does not mean
that the owner must pay Nezek Shalem for the third goring, but that from now
on the owner must pay Nezek Shalem for any subsequent gorings. As we proved
above based on logic and on the verse, the owner must be warned to watch his
ox before the ox gores and obligates him to pay Nezek Shalem.
As we mentioned, these two approaches have major implications for
understanding the Gemara's proof from the Beraisa for the view of "Yi'udei
Tora."
(a) RASHI here explains that the Beraisa indeed follows the opinion of Rava,
who maintains that if the testimony accomplishes "Yi'udei Tora," then the
owner pays Nezek Shalem on the third goring, even though he was never
brought to court prior to this goring. This explains the Gemara's proof from
the Beraisa for the view of "Yi'udei Tora." If the three testimonies are
causing the owner to pay Nezek Shalem, then according to the opinion that
says "Yi'udei Tora" it can easily be proven that the first two sets of
witnesses wanted to make the Shor into a Mu'ad, for otherwise why would they
have come to court for the third person whose ox was gored? If they only
wanted to make the ox pay Chatzi Nezek, they should have come to court with
the person whose ox was gored previously, which they witnessed, since he is
the one who will receive the Chatzi Nezek. This is the Gemara's proof for
"Yi'udei Tora."
The Gemara asks that even if the testimony accomplishes "Yi'udei Tora," why
should the *third* set of witnesses share in the payment of the Mu'ad-half
of the damages? They should be able to claim that they were not aware that
the Shor had gored two times in the past, and they came only to make the
owner obligated to pay Chatzi Nezek for the goring that they saw (since they
are brought by the person whose ox was gored, which they witnessed)!
Ravina answers that the third set of witnesses admitted that they do not
recognize the ox, and therefore they cannot obligate the owner to pay Chatzi
Nezek mi'Gufo. It must be that they are coming to obligate him to pay Nezek
Shalem *Min ha'Aliyah*. We asked how can they make the Shor a Mu'ad if they
do not know if it is the same one that gored in the past. The answer is that
the Shor is already a Mu'ad because of the first two gorings (according to
the way Rashi learns Rava), since the witnesses that testified about the
first two gorings *did* recognize the ox.
This still does not completely answer the question. How does the third set
of witnesses know that the ox that gored is the Mu'ad ox and not another ox
which is a Tam? Some explain that the third set of witnesses testify that at
the time of the goring they recognized it to be the same one that gored in
the past, and it was only later that that ox wandered into the flock and
became unidentifiable.
The problem with this explanation is that it does not explain the meaning of
the last line of the Gemara, where the Gemara asks, "How could [the
witnesses] make a Shor into a Mu'ad [with such testimony]?" The Gemara
answers that the witnesses testify, "You have in your flock a Shor that
gores, and therefore you must guard your entire flock." According to Rashi,
what the owner has to guard *in the future* has no bearing on this case,
since we are discussing the payment for the third goring which already
occurred (before the ox became confused with other oxen)! The DIBROS MOSHE
(end of #15) suggests for this reason that Rashi might not have had this
last section of the Gemara in his Girsa.
Perhaps Rashi understood Ravina's answer differently. Ravina means that
after the first two gorings, and before the third, the Shor ha'Mu'ad became
confused with other oxen (or with an identical ox) in such a way that no one
could possibly distinguish between the oxen.
The Gemara is asking that if the witnesses are not sure that the Shor
ha'Mu'ad is the one that gored, then how can they make the owner pay Nezek
Shalem? The Gemara answers that when the oxen became mixed up, the owner
himself could not identify which ox is the Mu'ad. Since he knew that there
was a Mu'ad in the flock, he became responsible to watch the entire flock as
if each ox was a Shor ha'Mu'ad. Therefore, even if the ox that gored the
third time was not the same ox as the earlier ones that gored, the owner is
responsible to pay Nezek Shalem because he was forewarned to guard that
particular ox as well. This is in accordance with what we explained above,
that even according to Rashi a Shor becomes a Mu'ad only because the owner
should have watched it and he failed to do so. (Alternatively, since we know
that one ox is a Mu'ad and we know that, at present, this particular ox
gored, we assume that this ox is the Mu'ad instead of assuming that there is
a second ox in the flock that gores. See TOSFOS RABEINU PERETZ.)
Why did the Gemara not explain that the witnesses recognize the ox at the
time of the goring, and the ox became mixed up only afterwards, and that is
how we know that the Mu'ad caused the damage? The answer is that if the
third set of witnesses once recognized the ox, then they may still claim
that they wanted to make the owner pay Chatzi Nezek at a later time when
they would recognize the ox that they originally saw. It must be that the
third set of witnesses never recognized which ox gored in the first place.
(b) TOSFOS explains that the three gorings in the Beraisa only make the Shor
a Mu'ad such that it will pay Nezek Shalem when it gores a *fourth* time.
Why do the Edim Zomemin have to pay for the Mu'ad damages if the Shor is not
yet a Mu'ad? Tosfos (end of DH v'Lo) gives two explanations. First, he says
that they pay the damage of a Mu'ad if the Shor eventually does do damage a
fourth time, since the earlier testimony is what caused it to be obligated
for Mu'ad damages. Alternatively, Tosfos says that even if the ox does not
gore a fourth time, it is now worth less on the market as a result of
becoming a Shor ha'Mu'ad, and it is that loss of value for which the three
sets of witnesses have to compensate when they are found to be Edim Zomemin.
The Gemara proves from the Beraisa the view of "Yi'udei Tora," since it is
only when the three sets of witnesses come together that we can be sure that
the first two sets wanted to make the Shor into a Mu'ad and not just a Tam.
How can their coming together prove that they wanted to make the Shor a
Mu'ad, since, in any case, they testified *before* the Shor gored a fourth
time -- before its owner became obligated to pay for it as a Mu'ad (since
Tosfos holds that the Shor must become a Mu'ad *before* the fourth goring)?
The witnesses did not come to court with the owner of the ox that was
damaged by a Mu'ad, but rather they came to court with the owner of an ox
that was damaged by a Tam!
Tosfos (24b, DH Leimru; see MAHARAM) explains that the very fact that the
witnesses did not come to court immediately, but they waited for the third
goring, shows that they were trying to make the Shor into a Mu'ad.
When Ravina explains that the third set of witnesses must have intended to
make the Shor a Mu'ad because they testified that they did not recognize the
ox that caused the damage, he means that the witnesses did recognize the ox
at the time that it caused the damage, but it became mixed up with the other
oxen before the time of the testimony. They are trying to make the owner
have to pay Nezek Shalem if it later becomes clear which of the oxen was the
original Mu'ad, and if it causes damage a fourth time.
Tosfos asks that if the only way for the witnesses to make the ox a Mu'ad is
by later distinguishing which ox was the one that gored, then the original
question returns -- perhaps they wanted to make the Shor a Tam to obligate
the owner to pay "mi'Gufo" when that ox is identified as the one that gored!
Tosfos answers that if the witnesses wanted to make the owner pay Chatzi
Nezek, then they should have waited until they could distinguish which ox
gored. Why did they testify before they knew which ox gored? It must be that
they wanted to make the Shor into a Mu'ad and obligate the owner to pay
Nezek Shalem, and the owner only pays Nezek Shalem if he was warned to watch
his ox *before* the fourth goring. That is why the witnesses came to court
immediately, before waiting until they recognized which Shor gored.
QUESTION: The Gemara discusses the underlying mechanism of how three sets of
testimony make a Shor into a Shor ha'Mu'ad: Do they serve to make the *Shor*
Mu'ad ("Yi'udei Tora"), or do they serve to make the *owner* Mu'ad ("Yi'udei
Gavra")? The Gemara proves that the purpose of the testimony is to make the
*Shor* a Mu'ad ("Yi'udei Tora"). It proves this from a Beraisa which teaches
that if three sets of witnesses testify that an ox gored on three different
occasions, and all of them turn out to be Edim Zomemin, then all six
witnesses must jointly pay the second half of the value of the payment that
they wanted to obligate the owner of the Shor to pay, the payment of a Shor
ha'Mu'ad, since they all intended to obligate him to pay that payment.
How can we be sure that the witnesses intended to cause the owner to have to
pay damages caused by a Shor ha'Mu'ad? Perhaps each set intended to cause
him to pay for damages caused by a Shor *Tam* (i.e. Chatzi Nezek)! It must
be that all three pairs of witnesses came together to testify that the Shor
was a Mu'ad as a result of three gorings that occurred on different days in
the past, as Rashi explains. If such testimony is accepted, then it must be
that the witnesses are accomplishing "Yi'udei Tora," since the Shor becomes
a Mu'ad even though the owner was not warned on three separate occasions.
The Gemara asks that even if the testimony accomplishes "Yi'udei Tora," then
why should the third set of witnesses have to share in the payment of the
Mu'ad-half of the payment? Why can they not claim that they were not aware
that the Shor had gored two times in the past, and they only came to make
the owner Chayav (Chatzi Nezek) for the goring that they saw on this
occasion?
The Gemara first answers that the witnesses are gesturing to each other. Rav
Ashi answers that the three sets of witnesses came to court together. Ravina
answers that the witnesses testify that they saw one of the owner's oxen
gore, but they are not sure which one it was. (See previous Insight.)
Do these answers only attempt to explain the Beraisa according to the view
of "Yi'udei Tora," or do they also answer the Beraisa even according to the
view of "Yi'udei Gavra?" (As we explained above, the view of "Yi'udei Gavra"
must explain that the three sets of witnesses came on three separate
occasions, and not at the same time.)
ANSWERS:
(a) RASHI explains that these answers only explain why we know that the
third set of witnesses knew that they were making the Shor into a Mu'ad,
according to the opinion of "Yi'udei Tora." The first answer is saying that
the first two pairs of witnesses gestured to the third pair to come and
testify. Therefore, the third pair must have known that two sets of
witnesses must have testified previously.
Rav Ashi answers that the three sets of witnesses walked into Beis Din
together, which clearly shows that they knew what each other would testify.
Ravina answers that the third set of witnesses could not identify which ox
did the damage. (Rashi explains that this answer, too, would not suffice
according to the view of "Yi'udei Gavra.")
(b) TOSFOS RABEINU PERETZ explains that Ravina's answer does apply even
according to the opinion of "Yi'udei Gavra." Ravina means that each of the
three sets of witnesses testified that they do not remember which ox it was
that gored. If they later identify the ox and it gores a fourth time, the
owner will have to pay damages of a Mu'ad. How do we know that they intended
to make the Shor into a Mu'ad when they identify it later, and not to make
it merely a Tam? They must have intended to make the Shor into a Mu'ad
because, otherwise, they would have waited to come to court until they could
identify the Shor, since they accomplish nothing by testifying before they
can identify the ox (as we wrote in the end of the previous Insight).
(c) TOSFOS cited by Tosfos Rabeinu Peretz (see Tosfos DH b'Makirin) and the
ME'IRI explain that not only is Ravina explaining according to the view of
"Yi'udei Gavra," but the first answer of the Gemara is as well. When the
Gemara says that they gestured, it means that each time one set of witnesses
came to court, the other sets stood in court and winked at them, gesturing
in such a way to show that they are plotting together.
However, the answer of Rav Ashi, who says that all of the witnesses came
together, obviously holds that the testimony is accomplishing "Yi'udei
Tora," since the witnesses are coming on the same day.
(d) Tosfos Rabeinu Peretz cites RABEINU CHANANEL who explains that even Rav
Ashi's answer can explain the Beraisa according to the view of "Yi'udei
Gavra:" If all three sets came together when the third set came to Beis Din,
that alone shows that they must have plotted together, for otherwise why did
the first two sets return to Beis Din?
The RA'AVAD makes a similar suggestion, but he explains that Rav Ashi means
that all three sets came to Beis Din *each* time, on each occasion when one
of the sets of witnesses came to testify. This is the implication of the
words of Rabeinu Chananel as printed in our texts. (See also MAHARSHA in
MAHADURA BASRA to Tosfos DH Ela.)