Comentario sobre Baba Kama 5:8

An ox that gores a cow and a fetus was found at it's side:

שור שנגח את הפרה – who was pregnant.

Introduction In chapter three mishnah eight we learned an important principle with regards to monetary claims in Jewish law: the burden of proof is on the plaintiff. In order to recover money from the defendant the plaintiff must prove that he owes him money. In absence of such proof the defendant owes nothing. This is generally the position of the sages with regards to monetary claims. However, there is another position that occasionally appears in the Mishnah. According to this position in cases where there is doubt to whom the money belongs, the plaintiff and the defendant split the money. Our mishnah goes according to this general rule and not the rule we learned previously that the burden of proof is on the defendant. This mishnah and the mishnah previously learned (3:8) are a good example how the Mishnah is not exactly a law book. A law book should not have contradictions between different laws. The Mishnah occasionally does contain such contradictions. The Mishnah is therefore more properly described as a collection of laws and traditions from which a capable judge could make a decision.

This mishanh is according to the opinion of Sumchos, who he says money that lies in doubt you divide. And if it would become clear to us that after it miscarried this fetus, that it was gored, we would not obligate for the fetus anything. And similarly if it became revealed to us it was gored while it was pregnant, and it miscarried, he will be obligated half damages even for the fetus. And since there's a doubt he pays a fourth of the value of the fetus, that is a half of a half, and this is in the case of a innocuous.

ונמצא עוברת בצדה – that died.

If an ox gored a cow [and it died] and its newly born young was found [dead] at its side, and it is not known if the cow gave birth before the ox gored, or if after the ox gored the cow gave birth, the owner of the ox pays half damages for the cow and one quarter damages for the newborn. Section one deals with an ox that is accounted harmless that gores and kills a cow. When the cow is discovered it also has dead newborn by its side. The owner of the ox certainly owes half damages for the cow, as is the law for damages done by animals that are tam, accounted harmless. However, it is unclear whether he owes half damages for the newborn as well. If the ox gored the cow before it gave birth, than the goring must have caused the cow to miscarry. In this case the owner of the ox will owe half damages for the newborn as well. However, there is a possibility that the cow miscarried before the goring. In this case the owner of the ox will not owe any damages for the newborn. In other words, the owner of the cow claims that the ox caused the miscarriage and that the owner of the ox owes half damages. The owner of the ox claims that the cow miscarried before the goring and that he does not owe for the newborn. In such a case the owner of the ox pays one quarter damages, half of the amount in dispute.

And if it was accustomed he pays complete damages for the cow and half damages for the fetus.

ואין ידוע אם עד שלא נגח ילדה – and did not die because of the goring.

And also if a cow gored an ox and its newly born young was found at its side, and it is not known if the cow gave birth before she gored, or if after she gored before she gave birth, the owner pays half damages from the value of the cow and one quarter damages from value the newborn. Section two deals with a similar case, except the roles are reversed. This time the cow gores and kills the ox. When the goring is discovered, the cow has a newborn next to it (this time the newborn is alive). Since the cow was accounted harmless (tam) it will pay half damages that cannot exceed the worth of the cow. Let us say that the gored ox was worth 500, half damages being 250. The cow was worth 200 after it gave birth and 250 while it was pregnant. If it gored while pregnant, the owner of the cow owes 250. In this case he will give over both the cow and her newborn. However, if it gored after giving birth the owner owes 200. After giving birth the newborn is already a separate entity not responsible to pay for the goring. The two owners are disputing whether or not the value of the newborn should be considered in paying the damages for the gored ox. According to our mishnah the owner of the gored ox can collect up to half payment from the cow. If he is still owed money, he can collect one quarter payment, or half of the half damages that he is owed, from the newborn. In our example he would collect the full 200 from the cow and 25 from the newborn.

And thus that when a cow gores an ox and is found it's fetus at it's side, if the (goring) cow is found, you take the half damage from the body of the cow, just like usual. And if the cow was lost and not found, and yet the fetus is found, we pay from the fetus a quarter of the damages since that if it became revealed to us while it was still in it's womb when it gored the law would have been that they pay half damages from the fetus, because this principle has been explained- a pregnanant cow, it and the fetus gores.

אם משנגחה – and because of the goring aborted the fetus.

Questions for Further Thought:
• What would be the law if this mishnah were to go according to the principle that the burden of proof lies on the plaintiff?

And since it is a doubt you pay a quarter as has been explained.

ורביע נזק – for an innocuous ox is liable for half damages and this offspring lies in doubt and we divide it. And our Mishnah is according to Sumachos who stated that money that is lies in doubt, we divide the money. But the Sages state that this is a great principle in law (see, for example, Tractate Bava Kamma, Chapter 3, Mishnah 11 above): “He who seeks reparation from his fellow must produce evidence (i.e., upon him is the burden of proof).” But the Halakha is according to the Sages. And even if the [owner of the] animal who suffered damages asserts a certainty (i.e., literally, “sure”) and the [owner of the] animal who caused the damages says “perhaps” (i.e., a possibility), “he who seeks reparation form his fellow must produce evidence.”

And the halakah is not like Sumchos in all of this discussion, rather like the Rabbis who say one who takes out from his friend upon him is the onus. And even if the damagee says 'I am positive' (you owe money) and the (alleged) damager says 'I don't know', we do not take from him anything except with proof.

וכן פרה שנגחה את השור וכו'- if the cow is found, it is according to the innocuous [animal whose owner] pays one-half damages from his estate, but if the cow is not found, he pays one-firth damages from the offspring, for if he had known that prior to [the cow] giving birth it had gored, he would pay all of the half-damages from the offspring, for she was pregnant and had gored and her fetus was gored, but if it was after she gave birth that she gored, he would not pay from the offspring anything, for the offspring did not gore. But the [owner of the] innocuous animal pays other than from his estate. But now that there is a doubt, they divide it and from the one-half damages that he has to pay, he pays one quarter damages from the offspring.

A potter that brings his pots into a courtyard of a homeowner etc...

ואם הוזקה בהם בעל הפירות חייב – and these words refer to when the animal slips and stumbles/falls through them. But if she (i.e., the animal) ate from them until she died , the owner of the produce is exempt [from indemnity] because she should not have eaten them.

If a potter brought his pots into the courtyard of a householder without permission, and the householder’s cattle broke them, the householder is not liable. And if the cattle were injured by them (by the the owner of the pots is liable. But if he brought them in by permission the owner of the courtyard is liable.
If a man brought his produce into the courtyard of a householder without permission, and the householder’s cattle ate it, the householder is not liable. And if the cattle were injured by it (by the the owner of the produce is liable. But if he brought it in by permission the owner of the courtyard is liable.
The two mishnayoth which we will learn today are concerned with damages that occur on the property of the damaged party. In mishnah two we will learn about a pottery maker or a produce seller who brings his ware onto another person’s property and it either causes damage or is damaged. In mishnah three we will learn about a person who brings his ox onto another person’s property and again it either causes injury or is injured. In both of these cases we will learn the following general rules:
1. If a person’s belongings are damaged after he brought them onto another person’s property without permission the owner of the property is not liable.
2. In such a case if a person’s belongings cause damage on another person’s property he is liable.
Sections one and two of mishnah two are very similar and can be explained simultaneously. If a person brings his belongings onto another’s household without permission he is obligated for any damage his belongings will cause. In addition he will not receive compensation if his belongings are damaged by the belongings of the owner of the household. After all, the householder can say I never gave you permission to come onto my property. In modern terms this would be called trespassing. However, if he received permission to come onto the property the laws are reversed. The mishnah explicitly states that if the person’s belongings were damaged the owner of the household, whose belongings caused the damage, is liable. It can be assumed, although it is not stated explicitly, that in such a case if the person’s belongings caused damage to the belongings of the household owner he would not be liable.

What it is saying with the fruits, that if it (the animal) was damaged from them... means to say if (the animal) stumbled on them, but if it happened to him damage from eating them, he is not obligated in anything in any matter. That the owner of the fruits did not accept upon himself the guarding of the animal of the house owner and it was not to him that it shouldn't eat.

A person brought in an ox to a courtyard of a homeowner without permission etc...

היה אביו או בנו – of the owner of the house were in it (i.e., the cistern) and the same law applies for the rest of the people, but [the Mishnah] took a usual incident.

If a man brought his ox into the courtyard of a householder without permission and the householder’s ox gored it or the householder’s dog bit it, the householder is not liable. If [the first man’s ox] fell into [the householder’s] cistern and polluted its water, he is liable. If [the householder’s] father or son was in [the cistern and it killed them] the ox’s owner must pay the ransom price. But if he had brought his ox in by permission the owner of the courtyard is liable.
Rabbi says: “In no case is [the householder] liable unless he had agreed to watch over it.
The first two clauses of mishnah three are similar to what we learned in the previous mishnah. We again learn that if a person brings his belongings onto another person’s property without permission and they are damaged he will not receive compensation and if they cause damages he is liable. In clause b we learn an additional law. If when falling into the cistern the ox kills a person, the owner of the ox is obligated to pay the ransom price mentioned in Exodus 21:30. As we learned in chapter four mishnah 5 when an ox kills a person, the owner of the ox is obligated to pay a ransom price to the family of the deceased. In our mishnah we learn that falling into a cistern is similar enough to goring that the ox’s owner is obligated.
At the end of this mishnah we learn that Rabbi (Rabbi Judah Hanasi) holds an opinion different from that held in the anonymous previous portions of the mishnah. According to Rabbi, allowing a person to enter one’s property is not tantamount to accepting upon oneself the obligation to watch over that person’s belongings. When I allow you to bring your belongings onto my property, I may still assume that you will watch over your things. Therefore, if they cause damage you are still obligated and if they are damaged I am exempt. According to Rabbi, a person does not accept the responsibility for watching the belongings until he states so explicitly. The other opinion in the mishnah held that by allowing a person to enter one’s property on is implicitly accepting upon himself the responsibility for that person’s belongings.

this is the case where that ox was 'accustomed' to fall on people in pits, therefore he's obligated to pay the ransom, specifically when he makes himself fall there because of food that he saw in the pit, and therefore the ox is not obligated to be killed. And the halakah is like Rebbi that he says that the owner of the house is not obligated in anything if he did not accept upon himself to guard it, and similarly the owner of the ox is not obligated in anything since he had permission to enter.

משלם את הכופר – as for example, the [owner of the] animal had been forewarned to cause himself to fall upon on people in cisterns and currently saw herbs in the pit and caused itself to fall into the cistern to eat the herbs and killed a person, that the [owner of the] ox is exempt from the death penalty, for it killed without intention. But the owners [of the ox] pay the ransom, for it includes the ransom even if the animal killed without intention, as we have stated above.

רבי אומר וכו' – And the Halakha is according to Rabbi [Yehuda HaNasi]. Therefore, if [the owner of] the animal led his ox [into the courtyard] with the permission of the owner of house, in an undefined manner, and he didn’t accept upon himself to guard [the animal], the owner of the house is exempt, for he did not accept upon himself watching/proper care. And the one who brings it (i.e., the animal) in is also exempt [from liability] because he brought it (i.e., the animal) in with permission.

An ox that was intending for his friend and struck etc....

שור שהיה מתכוון לחבירו וכו' – since our Mishnah had to teach the “concluding” (actually, the next phrase) part [of the Mishnah] that a person who intended [to strike] his fellow, the first part [of the Mishnah] teaches also regarding an ox that intends [to gore] its fellow [ox], for even if it had intended [to gore] a woman , the [owner of the] ox is exempt from the payment [for the value of] the offspring, for he is not liable for the payment [for the value of] offspring other than of a human being alone.

If an ox intended [to gore] another ox and struck a woman and her offspring came forth [as a miscarriage], its owner is not liable for the value of the offspring. But if a man intended to strike his fellow and struck a woman and her offspring came forth [as a miscarriage], he must pay the value of the offspring.
How does he pay the value of the offspring? They assess the value of the woman before she gave birth and the value after she gave birth.
Rabban Shimon ben Gamaliel said: “If so, once a woman gives birth she is more valuable. Rather, they assess how much the offspring would be worth, and he pays it to the husband, or if she has no husband to his heirs.”
If she was a freed bondwoman or a proselyte no penalty is incurred.
Exodus 21:22 states: “When men fight, and one of them pushes a pregnant woman and a miscarriage results, but no other damage ensues, the one responsible shall be fined according as the woman’s husband may exact from him, the payment is to be based on reckoning” (JPS translation). According to the Torah, usually a person who accidentally kills another person cannot pay in order to atone for his crime. However, in the case described in this verse the person did not kill an independent human being but rather he caused a miscarriage. Therefore the Torah allows him to make financial compensation for the loss of the fetus/baby. (I am attempting to be very careful about the sensitive issue of Judaism’s stance on the status of a fetus and on abortion. One could potentially argue from this verse that according to the Torah a fetus is not equal to a born human being. However, an exemption from murder charges for one who accidentally causes a miscarriage is not necessarily a blanket approval for abortion.)
Our mishnah deals with two subjects. The first is a definition of the scenario in which this law will apply. The second is an account of the payments required for causing the miscarriage.
Section one limits the application of the verse from Exodus to a case where a person caused a miscarriage. After all the verse states, “When men fight…” and therefore it can be assumed that the law does not apply when an ox causes the miscarriage. In this case the owner of the ox will pay for the damage done to the woman and not for the damage done to the offspring.
Section two begins a discussion of the payments made for the miscarriage. According to the first opinion one evaluates the worth of the woman before the pregnancy and after the pregnancy and the difference is the payment for the offspring. This payment is made to the husband, as we shall learn in section 3a. The payment for the damages to the woman herself is a payment to the woman and the payment for the loss of the offspring is a payment to her husband. According to Rabban Shimon ben Gamaliel (section three), a pregnant woman is actually worth less than a non-pregnant woman. In order to understand his words we must remember that in those times death during childbirth was all too common. A pregnant woman was in a dangerous situation and therefore her value is lower. Once she gives birth her value will rise because she is out of the dangerous situation. Therefore, we cannot use this system to evaluate the payments. Rather, according to Rabban Shimon ben Gamaliel, we estimate how much the offspring themselves would have been worth.
In section 3a we learn that if the woman’s husband died between the time of conception and the time of the miscarriage, the payments are an inheritance to his inheritors. Section 4 is concerned with two women whose husbands are likely not to have inheritors. There are two possibilities to understand this section. First of all, if a woman is a bondwoman and is freed while pregnant, or a woman converts while pregnant, her husband or impregnator is no longer legally responsible or legally considered the father of the children. Therefore, if someone should accidentally cause her to miscarry, there is no father that can collect the payment. Alternatively this last section may deal with a freed bondwoman who marries a freed slave or convert or a convert who marries another convert. The miscarriage occurs after this husband has died and before they have other children. In this case the husband has no inheritors since converts and freed slaves do not have inheritors in their families from before they changed their status.

Because it wants to discuss that if a man is intending (to strike) his friend, it says an ox who intends (to strike) his friend, and there's no difference whether the ox intended for an ox and struck a woman or he intended to the woman herself, he is not obligated the value of the fetus since the torah does not obligate in this, rather a man only. And what that it says with a convert, that he is exempt for the fetus, does not mean to say that when she converted that she was already pregnant, as this is clear to us, rather it means to say that she got [pregnant] [SUBSTITUTE: attacked] in the life of (her husband) the convert and the convert died or she miscarried after the death of the convert, because the principle in our hand is when there is a husband, the torah endowed it to him, when there is not it is not endowed to him. Therefore he is not obligated in the value of the fetus when there is not to this convert heirs, meaning to say 'sons' that were born in the jewish religion and their conceiving was when they were jewish. And we already know the words of Rabban Shimeon ben Gamliel, is it true that when a woman for whom she gives birth (her husband), she increases (in value)- and she does not have any portion in the increase of value at all? And this is what Rabban Shimon Ben Gamliel says, yes, the value of the fetuses are to the husband but the value of (the woman, caused by the) fetus is divided. And the Sages say the increase from the pregnancy is to the husband. Therefore the first tanna evaluates the increase (of the woman) and the value (of the fetus) and gives everything to the husband. And in this the gemora explains the words of the first tanna and says how we evaluate the value of the fetus, we evaluate the woman how much she was worth etc... And the halakah is not like Rabban Shimon ben Gamliel.

א"כ משהאשה יולדת משבחת – if so, that this is what we assess just as you said, it is found that he doesn’t give you anything for from when the woman gives birth, her worth is enhanced for her monetary value is less to be sold prior to her giving birth when she is in danger of dying in the pain of childbirth.

היתה שפחה ונשתחררה – meaning to say, when she was freed, she was married to a convert or to a manumitted slave or a female convert is married to one of them , and the husband (who was a freed slave or a convert) passes away, [the owner of the one who caused the damages] is exempt, for the individual who takes possession of the property of the convert who died and he has no heirs has merited, and this comes prior to acquiring what is in his hands. And the same law applies also to an Israelite woman who married a convert, and the convert died, he is exempt, for the value of the offspring goes to the husband, but because an undefined freed woman slave or a female convert are married to a male convert or to a freed slave, for this reason, [the Mishnah] took the language of a maidservant and a female convert.

If someone digs a pit in a private domain and opens it in a public domain...He digs a pit in the public domain and an ox falls into it.

ברשות היחיד ופתו לרשות היחיד אחרת – even though there is not side of a public domain here, he is liable, and only as long as he had made his domain ownerless where the mouth of the cistern is within it.

If a man dug a pit in a private domain and opened it into the public domain, or if he dug it in the public domain and opened it into a private domain, or if he dug it in a private domain and opened it into another private domain, he is liable [if any is injured by the pit].
If he dug a pit in the public domain and an ox or ass fell into and died, he is liable.
No matter whether he digs a pit, trench, or cavern, or ditches or channels he is liable. If so, why does it say “a pit” (Exodus 21:33)? Just as a pit which is deep enough to cause death is ten handbreadths deep, so anything is deep enough to cause death if it is ten handbreadths deep.
If they were less than ten handbreadths deep and an ox or an ass fell in and died, the owner is not liable; but if it was damaged he is liable.
In the first mishnah of the tractate we learned that there are four archetypal causes of damage. Our mishnah and the two mishnayoth that we will learn tomorrow are concerned with the second cause of damage, namely the pit. Exodus 21:33-34 state: “When a man opens a pit, or digs a pit and does not cover it, and an ox or an ass falls into it, the one responsible for the pit must make restitution; he shall pay the price to the owner, but shall keep the dead animal.” Our mishnah deals with several details concerning damages done by a pit.
Sections one and two emphasize that the pit which is described in the Torah is a pit dug almost anywhere. The only exception would be a person who dug a pit on his own property and another person came onto his property without his permission and fell in the pit. In this case the owner would not be liable since the ox entered without his permission.
Section three states that one is obligated not only for damages caused by a pit but damages caused by any hole dug into the ground. There are many types of holes a person might dig for various reasons and they all have different names. The mishnah emphasizes that one is obligated not just for pits but for other holes as well. Section 3a asks a follow-up question. If the Torah meant to say that a person is obligated for any hole he dug in the ground or uncovered why did it specifically mention pit? The answer is that a pit is an example of how deep something has to be for it to be normal for it to cause the death of an animal that fell in. Ten handbreadths (=about one yard) is such a normal depth. Therefore we can conclude that any hole which is ten handbreadths deep is considered to be similar a pit and if an animal falls in and dies, the person who dug or uncovered the hole will be liable.
Section four is a follow-up to section three. If a person dug a hole or uncovered a hole less than ten handbreadths he does not, according to the mishnah, fit into the category mentioned in the Torah. Therefore if an animal does fall in and die he is not liable. However if the animal is injured he is liable since a hole less than ten handbreadths is likely to cause injury.

All this is clear and does not need to be explained.

אחד החופר בור – it is made round.

שיח – long and narrow [trench].

מערה – square and covered temporarily but it has an opening.

חריצין – wide and squared like a cavern, but they are not its source.

נעיצין – short from the bottom and wide from the top.

מה בור שיש בו כדי להמית י' טפחים – for an undefined cistern is ten handbreadths high.

A pit of 2 partners and the first one passed by etc... The first one covers it and the second comes and finds it uncovered etc....

השני חייב – when he (i.e., the first of the partners passed to him while he was walking the cover to cover it and the second one didn’t cover it.

Introduction Mishnah six continues to deal with damages done by a pit, a subject that we began to learn in mishnah five. The Torah states that a person is obligated for damages caused by a pit which he dug or by a covered pit which he uncovered. The first two sections of mishnah six deals with the duty to properly cover pits. The third section of the mishnah deals with the cause of an animal’s falling into a pit. The fourth section deals with damages done to the load carried by the animal when it falls into the pit. The fifth section deals with irresponsible oxen, children and slaves who fall into the pit. According to mishnah seven when the Torah states “ox” with regards to a number of laws, the intention is not that the law is limited to an ox. Rather the laws of the Torah mentioned in this mishnah apply to any animal or bird. This mishnah is an appendix to the laws that we have learned in the first five chapters, must of which were dealt with goring oxen and damages by a pit. In both of these laws the Torah uses the example of an ox, and therefore it is essential that our mishnah emphasize that an ox is just an example. These laws are equally applicable to other animals.

[The ox] falls forward from the sound of the digging that it will trip by the edge of the pit because of the sound of the digging that the digger digs in the ground of the pit and [the ox] falls into the midst of the pit and thus the owner of the pit is obligated. However if it falls backwards and the case is that it had already passed the pit and it tripped [on it's edge] and returned backwards and fell back onto the pit, he is exempt, except if he falls into the pit and then he is obligated in whichever of the two scenarios that it will be.

כסתו כראוי ונפל לתוכה – such as the case of where the cover became worm-eaten/decayed.

If a pit belonged to two partners and one went over it and did not cover it, and the other also went over it and did not cover it, the second one is liable. If the first covered it and the second came and found it uncovered and did not cover it, the second one is liable. Section one of mishnah six deals with the duty to cover a pit. We learn here that if the pit was owned by two people, the last one to be at the pit is the one responsible for damages done if he left the pit uncovered. Even though the first person also left the pit uncovered, since the second person was the last to be at the pit, he is the one held accountable.

And the torah says 'he falls there an ox or a donkey' and we receive in the explanation of this passage 'an ox' and not a person, 'a donkey' and not vessels. And he will not also be obligated for the animal except when it will be a deaf mute or a deranged or a child, but an ox that is an adult and intelligent is not obligated for this at all because he [the owner of the pit] is able to tell him it needs to look and go.

נפל לפניו מקול הכרייה חייב – he was digging in the pit and the ox heard the sound of a hammer and was frightened and fell into the pit and died, he [the owner of the pit] is liable and even though that since it was because of indirect effect of the sound of the digging that it fell, we could say that the liability of the pit goes away from it and throws [instead] on the negligence regarding the sound of the digging but this is a mere indirect cause and he is exempt. Nevertheless, he is liable since the damage was found inside the pit.

If he covered it properly and an ox or an ass fell into it and died, he is not liable. If he did not cover it properly and an ox or an ass fell into it and died, he is liable. Section two states quite simply that if a person covers a pit properly and nevertheless an animal falls in and dies, he is not liable.

לאחריו מקול הכרייה פטור – if the ox stumbled/fell from the sound of the digging on the edge of the pit and fell backwards outside of the pit and died, he (i.e., the owner of the pit) is exempt [from liability], for the damage was not found in the pit and the sound of the digging was a mere indirect cause and he is exempt.

If it fell forward [not into the pit, frightened] because of the sound of the digging, the owner of the pit is liable. But if backward [not into the pit, frightened] because of the sound of the digging, he is not liable. Section three deals with animals that are frightened by the sound of the digging and fall. In other words the damage was caused not by the pit itself but by the digging of the pit. According to our mishnah if they fall forward the owner is obligated but if they fall backward the owner is exempt. This distinction is based on a midrash that demands that the ox is killed while walking forward and not while walking backward. [I have explained this mishnah according to Albeck, but there are other explanations].

ונשתברו. ונתקרעו – with the ox’s utensil belongs the breaking of the yoke and the plough. Regarding the donkey’s utensil belongs the tearing of the package of clothing and the pack saddle/cushion that is on its back.

If an ox and all of its trappings fell into it and they broke, or if an ass fell into it with its trappings and they were torn, he is liable for the beast but exempt for the trappings. Section four deals with damages done to the load that the animal was carrying when it fell into the pit. This law is also based on a midrash. Exodus 21:33 states: “and an ox or an ass falls into it”. The Rabbis learned in a midrash “an ox, and not a person; an ass and not trappings.” Compensation for damages done by a pit are therefore limited to damages done to the animal itself.

ופטור על הכלים – as it is written (Exodus 21:33): “and an ox or a donkey falls into it.” An ox, but not a human being; a donkey but not utensils.

If an ox that was deaf, insane or young fell in, the owner is liable. If a boy or a girl or a slave or a bondwoman fell in, he is not liable. Section five sets an important limit to the liability for the pit-owner. The mishnah states that if a deaf ox, or an insane ox or a minor ox that had not yet learned to walk carefully fell into the pit the owner of the pit is liable. By inference we can learn that if an adult capable ox fell into the pit the owner of the pit is exempt. The second clause of this section states that this rule is not true with human beings. As we learned in the aforementioned midrash, the Torah states that one is obligated when an animal falls into the pit and not when a human does. Our mishnah emphasizes that even if the human was a child who is by nature not careful, the pit-owner is exempt. Furthermore, even if the human was a slave who, like an ox, belongs to someone else, the slave is still not an ox or an ass, and therefore the owner of the pit is exempt.

An ox (I.e., its owner) who is deaf-mute, or is an imbecile or is a minor, is liable for it if it fell into the pit. But an ox (i.e., its owner) which can hear is not liable for it, for he needs to investigate/deliberate and continue.

Whether an ox or whether any animal that falls in a pit etc...

אחד שור ואחד כל בהמה לנפילת הבור – as it is written (Exodus 21:34): “[The one responsible for the pit must make restitution.] He shall pay the price to the owner, [but he shall keep the dead animal],” anything that has owners.

An ox and all other beasts are alike under the laws concerning falling into a pit, keeping apart from Mount Sinai, two-fold restitution, the restoring of lost property, unloading, muzzling, diverse kinds, and the Sabbath. So to wild animals and birds. If so, why is it written “an ox or an ass”? But Scripture spoke of prevailing conditions. Mishnah seven lists several laws in which the Torah states “ox” or “beast” but the Rabbis hold that the law is true for all animals, including even wild animals and birds. I will briefly explain these laws with their Biblical references: Falling into the pit this is our topic in Bava Kamma. Keeping apart from Mount Sinai see Exodus 19:13. There God tells Moses to keep everyone, including the animals away from the mountain before the Revelation. Two-fold restitution see Exodus 22:3, 8. If a person steals something and is caught he must pay back double. Restoring lost property see Exodus 23:4, and Deuteronomy 22:1. Unloading see Exodus 23:5. If one sees his enemy’s ox buckling under its load, he must help him unload the animal. Muzzling see Deuteronomy 25:4. One is not allowed to muzzle an ox while it is threshing. Diverse kinds see Leviticus 19:19 and Deuteronomy 22:10. According to Leviticus one is not allowed to mate two different kinds of animals. According to Deuteronomy one is not allowed to yoke an ox and an ass together. The Sabbath see Exodus 20:10 and Deuteronomy 5:14. One must allow his animals to rest on the Sabbath. According to our mishnah the reason why the Torah uses the word ox is that oxen were the most frequently used animals in those times.

All this is clear and it does need explanation. However what it says 'diverse kinds' that this alludes to what it says 'you should not plow with an ox and with a donkey together'. And it says any 2 types of animal are thus, you can not plow with them, and not to pull them together and this rabbinic. However from the torah it is not forbidden to plow to pull and lead except a clean animal and an unclean only. Similar to an ox and a donkey. And already explained this in the eighth chapter of tractate 'mixtures'.

ולהפרשת הר סיני – as it is written (Exodus 19:13): “[No hand shall touch him, but he shall be either stoned or shot;] beast or man he shall not live;” and wildlife is included in animals, if also to include birds.

לתשלומי כפל – as it is written (Exodus 22:8): “In all charges of misappropriation” – anything where there is negligence.

להשבת אבידה – “and so too shall you do with anything that your fellow loses” (Deuteronomy 22:3).

לפריקה – (Exodus 23:5): “and would refrain from raising it.” Even though it Is written (Exodus 23:5): “When you see the ass of your enemy [lying under its burden],” all animals are included for we derive "חמור" "חמור" – from Shabbat, as it states (Deuteronomy 5:14): “your ox, your ass, or any of your cattle.”

לחסימה – “You shall not muzzle an ox in its threshing” (Deuteronomy 25:4). We derive "שור" "שור" through a Gezerah Shavah (i.e., analogy) from Shabbat.

לכלאים – the (forbidden) coupling of heterogenous animals, even though it is written (Leviticus 19:19): “You shall not let your cattle mate with a different kind.” This is also wildlife and birds included, for we derive "בהמה" "בהמה from Shabbat. And the same law applies to all two kinds of cattle, wildlife and birds. But, however, regarding the legal decision of the Halakha from the Torah, he is not liable other than someone who ploughs or leads with the two species [of same kind of animal] where one is ritually impure and the other is ritually pure, similar to an ox and an ass, but the Sages stated that [it means] any two species whether they are both ritually impure or whether they are ritually pure.

לשבת – as it is written (Deuteronomy 5:14): “your ox, or your ass, or any of your cattle.” But wildlife is within the category of cattle and every extension of scope/amplification is to include birds.

שדבר הכתוב בהווה – a thing that regularly happens.