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1) LIABILITY FOR MINORS

(a) (Mishnah): And similarly for a boy or girl.
(b) (Beraisa): "Or if it will gore a boy or girl" - (we kill the ox) for minors as for adults.

1. Suggestion: We should be able to learn from man, who is liable for minors as adults!

i. A person that kills a minor is (killed) as one who kills an adult - also, an ox that kills a minor should be (killed) as an ox that kills an adult!
ii. Moreover, there is a Kal va'Chomer: a child that kills is not (killed) as an adult that kills, yet people are killed for killing children - a young ox that kills a person is (killed) as a mature ox, all the more so, an ox that kills a minor is as one that kills an adult!

2. Rejection: No - a man that kills is more stringent, he pays 4 (additional) damages - we cannot learn to an ox that only pays Nezek - we need "A boy or a girl".

(c) Question: This was said by a Mu'ad - how do we know regarding a Tam?
(d) Answer #1: The Torah said that we kill the ox for goring a man or woman, and for a boy or girl. Just as regarding a man or woman, Tam is as Mu'ad, also regarding a boy or girl.

1. Moreover, it is a Kal va'Chomer: men and women have less privileges regarding damages (when they damage, they are liable), Tam is liable for them as Mu'ad - minors, who are privileged regarding damages (they are exempt for damage), all the more so Tam is liable for them as Mu'ad!
2. Question: Can we make such a Kal va'Chomer, to be stringent?

i. We are stringent for killing adults, for they are commanded to keep Mitzvos - perhaps we are lenient for killing minors,who are exempt from Mitzvos!

(e) Answer #2: "If it will gore a boy, if it will gore a girl" - it says "gore" twice, the verse speaks of a Mu'ad and a Tam that gore, regarding death and damages.

(a) (Mishnah): In the following cases, an ox is exempt:

1. It was scratching on the wall, and it fell on a man;
2. It intended to kill an animal, a Nochri, or a non-viable baby, and killed a (healthy) Yisrael.

(b) (Gemara - Shmuel): The animal is not killed, but it pays Kofer.
(c) (Rav): It is exempt from both.
(d) Question: Why does Shmuel say it pays Kofer - it is Tam!
(e) Answer: Just as Rav said (elsewhere), the case is, the ox is Mu'ad to fall on people in pits - the ox is Mu'ad to kill people when scratching on walls.
(f) Question: If so, we kill the ox!

1. By the pit, we can say it saw food, and therefore fell in - but here, it intended to kill!

(g) Answer: No, it was scratching for its own benefit.
(h) Question: How do we know this?
(i) Answer: After it fell, it resumed scratching.

(j) Question: This is only pebbles (the ox made the wall fall, the wall killed)!
(k) Answer (Rav Mari brei d'Rav Kahana): The ox was weighing down on the wall the entire time it was falling.
(l) A Beraisa supports Shmuel, and refutes Rav.

1. (Beraisa): Sometimes the ox is killed and pays Kofer; sometimes the ox is not killed but it pays Kofer; sometimes the ox is killed but it is exempt from Kofer; sometimes it is exempt from both.

i. A Mu'ad that intended to kill - the ox is killed and pays Kofer;
ii. A Mu'ad that did not intend - the ox is not killed but it pays Kofer;
iii. A Tam that intended - the ox is killed but it is exempt from Kofer;
iv. A Tam that did not intend - the ox is exempt from both.

2. Damages without intent - R. Yehudah obligates, R. Shimon exempts.

(m) Question: What is R. Yehudah's reason?
(n) Answer: He learns from Kofer - just as one pays Kofer even without intent, also damages.
(o) R. Shimon learns from stoning - just as we only kill the ox when it intended, also payment of damages.

1. Question: Why doesn't R. Yehudah learn as R. Shimon?
2. Answer: He prefers to learn payments from payments, not from death.
3. Question: Why doesn't R. Shimon learn as R. Yehudah?
4. Answer: He prefers to learn damages from stoning, which are both liabilities of the ox, not from Kofer, which is an atonement for the owner.

(a) (Mishnah): It intended to kill an animal, and killed a Yisrael...it is exempt.
(b) (Inference): Had it intended to kill Reuven and killed Shimon, it would be liable!
(c) Our Mishnah is not as R. Shimon.

1. (Beraisa - R. Shimon): Even if it intended to kill Reuven and killed Shimon, it is exempt.

(d) Question: What is his reason?
(e) Answer: "The ox will be stoned, and also its owner will die" - death of the ox is as of the owner;

1. Just as a man is only killed for killing his intended victim, also an ox.

(f) Question: How does he know that a man is only killed for killing his intended victim?
(g) Answer: "He waited in ambush for him, and rose upon him" - he must intend for his victim.
(h) Question: What do Chachamim learn from that verse?
(i) Answer (d'vei R. Yanai): It excludes one who throws a rock into a group and kills someone.
(j) Question: What is the case?

1. Suggestion: If there are 9 Nochrim and 1 Yisrael there - obviously he is exempt, the majority are Nochrim (he did not expect to kill a Yisrael).

i. Even if half were Nochrim, for an even doubt we do not kill!

(k) The case is, there are 9 Yisraelim and 1 Nochri there - even though the majority are Yisraelim, the minority is considered 'fixed', it is as an even doubt, we do not kill when in doubt.

(a) (Mishnah): The following oxen are killed (for killing): the ox of a woman, of orphans (without an Apotropus), of (orphans with) an Apotropus, an ox of the wilderness, a Hekdesh ox, and the ox of a convert that died without heirs;

1. R. Yehudah says, we do not kill an ox of the wilderness, of Hekdesh, or of a convert that died without heirs, because it has no owner.

(b) (Gemara - Beraisa): It says 'ox' 7 times in the Parsha - 6 are extra, to teach about 6 special oxen we kill: the ox of a woman, of orphans, of an Apotropus, an ox of the wilderness, a Hekdesh ox, and the ox of a convert that died without heirs;

1. R. Yehudah says, we do not kill the last 3, because they have no owners.

(c) (Rav Huna): R. Yehudah exempts even if it had an owner, and he made it Hefker or Hekdesh after it gored.
(d) Question: How do we know that?
(e) Answer: Since the Mishnah teaches an ox of the wilderness and the ox of a convert that died without heirs as separate cases.

1. Question: Both are Hefker!
2. Answer: Both are taught to teach that even if it had an owner, and he made it Hefker or Hekdesh after it gored, R. Yehudah exempts.

(f) Support (Beraisa - R. Yehudah): Even if it had an owner, and he made it Hefker or Hekdesh after it gored, it is exempt - "The owner heard testimony on it, and it killed (again...the ox will be stoned)" - the trial of the ox must be as the goring, (i.e. when it has an owner).
(g) Question: Don't we also need an owner at the time of the verdict? "The ox will be stoned" is the verdict!
(h) Correction: Yes, it should say 'the goring, the trial, and the verdict must be the same' (when it has an owner).