Or HaChaim on Exodus 21:36/אור החיים על שמות כ״א:ל״ו

1 ולא ישמרנו, and he did not supervise it adequately, etc. The correct interpretation of this verse follows what we learned in Baba Kama 46. Rabbi Eliezer is on record that the only adequate supervision of an aggressive ox such as the one mentioned in our verse is the knife, i.e. it has to be slaughtered. Rabbah elaborated: "why does the Torah speak of 'if he will not guard it,' because there is no longer any point in guarding it." If the ox had to be slaughtered what is the point of speaking of supervision?" Abbaye answered Rabbah that if one were to accept Rabbah's argument what is the meaning of "he did not cover it" in verse 33? [clearly if the pit had been covered nobody would have fallen into it. Ed.] So far the Talmud. I believe that Rabbah's point is well taken. There is obviously a difference between the situation involving the pit and that of the ox which had gored repeatedly. In the case of the pit, the Torah uses the future tense, it speaks of an event which has not happened as yet; Also the description of the victims is worded in the future. In the case of the ox which had gored repeatedly the Torah commences by telling us of the past history of that ox. The Torah suddenly switches to the future tense by saying ולא ישמרנו. Actually, the Torah should have written ולא שמרו, "and he did not guard it." Rabbah did not bother to answer Abbaye in the Talmud. According to the view of Rabbi Yehudah that even relatively minor supervision of such an ox is adequate in order to exonerate the owner if the ox gored again, the Torah must be understood thus: ולא ישמרנו, "if he did not guard it at all." It is worthwile to study the Talmud at the end of the chapter on folio 46.

2ישלם שור, he shall pay an ox. Although the Talmud in Baba Kama 4 states that an ox which is a מועד, whose owner has been put on notice that his ox is agressive, will have to make restitution by paying the victim from the best quality of the fields the owner posesses, this rule is limited to situations when the owner of the aggressive ox owned property of a quality superior to that of the owner of the victim. If not,-using our verse as a guide,- he may be allowed to use the ox itself as payment. The statement in the Talmud may only mean that the owner of the aggressive ox must not use earth which is inferior to that owned by the victim's owner as a means of payment.