Tanach · Rishonim on Tanach · Ramban · Torah

Ramban on Exodus 21:36/רמב"ן על שמות כ״א:ל״ו

אוְלֹא יִשְׁמְרֶנּוּ בְּעָלָיו יָדוּעַ כִּי גַּם הַתָּם אִם יִשְׁמְרֶנּוּ בְּעָלָיו כָּרָאוּי וְיָצָא וְהִזִּיק בְּמִקְרֶה שֶׁאֵרַע, בְּוַדַּאי שֶׁהוּא פָּטוּר, וְזֶה שֶׁאָמַר בַּמּוּעָד וְלֹא יִשְׁמְרֶנּוּ, עַל דַּעַת הָאוֹמֵר בַּתַּלְמוּד שֶׁהַמּוּעָד צָרִיךְ שְׁמִירָה מְעֻלָּה מִן הַתָּם (ב"ק מה:), יֹאמַר הַכָּתוּב וְאִם שׁוֹר נַגָּח הוּא וְהוּעַד בִּבְעָלָיו וְלֹא יִשְׁמְרֶנּוּ, לְהוֹסִיף בּוֹ שְׁמִירָה מִפְּנֵי רָעָתוֹ, וְיָצָא וְהִזִּיק יְשַׁלֵּם נֶזֶק שָׁלֵם, וְעַל דַּעַת הָאוֹמֵר שֶׁהַשְּׁמִירָה בַּתָּם וּבַמּוּעָד שָׁוָה (ב"ק מה: ותוספתא שם), יֹאמַר וְאִם נוֹדַע לוֹ שֶׁשּׁוֹר נַגָּח הוּא וְגַם עַתָּה לֹא יִשְׁמְרֶנּוּ, בַּעֲבוּר פְּשִׁיעָתוֹ הַגְּדוֹלָה יִתְחַיֵּב נֶזֶק שָׁלֵם:

1OR IF IT BE KNOWN THAT THE OX WAS WONT TO GORE IN TIME PAST, AND ITS OWNER HATH NOT KEPT IT IN, HE SHALL SURELY PAY AN OX FOR AN OX. It is known that if a Tam¹⁹³ is an animal which has not injured, or killed [an animal] more than three times and whose owner has not been warned that it is dangerous and must be guarded. For whatever damages a Tam does, its owner pays only half the loss. The Tam is distinguished from a Muad, an animal which has killed or injured at least four times, and whose owner has been warned that it is dangerous and must be guarded. For whatever damage it does, the owner must pay in full. too is properly guarded by its owner, but through an accident it so happened that it went out and caused damage, the owner is certainly not liable.¹⁹⁴, (see Note above) since the same law applies to a Tam as well. Ramban proceeds to remove this difficulty. Thus the reason why He states only with reference to a Muad,¹⁹³ is an animal which has not injured, or killed [an animal] more than three times and whose owner has not been warned that it is dangerous and must be guarded. For whatever damages a Tam does, its owner pays only half the loss. The Tam is distinguished from a Muad, an animal which has killed or injured at least four times, and whose owner has been warned that it is dangerous and must be guarded. For whatever damage it does, the owner must pay in full. and its owner hath not kept it in, [when the same principle would apply to a Tam as well] is, according to that Sage in the Talmud¹⁹⁵ who says that a Muad needs better guarding than a Tam, as follows: Scripture states that if the ox was wont to gore and warning had been given to its owner, and he hath not kept it in and guarded it better in view of its dangerous nature, so that it went out and caused damage, the owner must pay the full damage. According to the opinion of that Sage¹⁹⁶). who holds that the degree of guarding necessary for both Tam and Muad¹⁹³ is an animal which has not injured, or killed [an animal] more than three times and whose owner has not been warned that it is dangerous and must be guarded. For whatever damages a Tam does, its owner pays only half the loss. The Tam is distinguished from a Muad, an animal which has killed or injured at least four times, and whose owner has been warned that it is dangerous and must be guarded. For whatever damage it does, the owner must pay in full. is alike, the meaning of the verse is as follows: If it be known to the owner that the ox was wont to gore and now too [i.e., at the fourth time] he hath not kept it in, he is liable to pay the full damage on account of his grave negligence.

בוְהַמֵּת יִהְיֶה לּוֹ לַנִּזָּק, וְעָלָיו יְשַׁלֵּם הַמַּזִּיק עַד שֶׁיִּשְׁתַּלֵּם הַנִּזָּק נֶזֶק שָׁלֵם. זֶהוּ לְשׁוֹן רַשִׁ"י (רש"י על שמות כ"א:ל"ו) כְּדֶרֶךְ רַבּוֹתֵינוּ (ב"ק י:). וְאִם כֵּן רָאוּי שֶׁנְּפָרֵשׁ שַׁלֵּם יְשַׁלֵּם שׁוֹר תַּחַת הַשּׁוֹר עִם הַמֵּת שֶׁיִּהְיֶה לוֹ, וְכֵן "וְיוֹסֵף הָיָה בְמִצְרָיִם" (שמות א':ה'), עִם יוֹסֵף שֶׁהָיָה בְּמִצְרַיִם. וְכֵן "לֹא אוּכַל אָוֶן וַעֲצָרָה" (ישעיה א יג), בַּעֲצָרָה, כְּאוֹמְרוֹ "שׂוֹנֵא גָזֵל בְּעוֹלָה" (שם סא ח): וְיִתָּכֵן לְפָרֵשׁ עַל דֶּרֶךְ הַפְּשָׁט, וְהַמֵּת יִהְיֶה לּוֹ, לַמַּזִּיק, כְּלוֹמַר שַׁלֵּם יְשַׁלֵּם שׁוֹר תַּחַת הַשּׁוֹר וְהַמֵּת יִהְיֶה לוֹ לַמַּזִּיק הַמְּשַׁלֵּם בַּתַּשְׁלוּמִין הָאֵלּוּ, שֶׁיַּכְנִיסֵהוּ לַנִּזָּק בַּחֶשְׁבּוֹן. וְעַל שְׁנֵי הַלְּשׁוֹנוֹת הַדִּין שָׁוֶה הוּא, שֶׁיִּהְיוּ הַבְּעָלִים מִטַּפְּלִין בִּנְבֵלָה, וּמִשְּׁעַת מִיתָה תִּכָּנֵס עִמּוֹ בְּחֶשְׁבּוֹנוֹ, כְּדִבְרֵי רַבּוֹתֵינוּ (ב"ק שם):

2AND THE DEAD BEAST SHALL BELONG TO HIM — “to the one who suffered the damage, and the one who caused the damage adds to it until he completes the amount, so that the one who was damaged will have been paid for his entire loss.” This is Rashi’s language, and is in accordance with the teaching of our Rabbis.¹⁹⁷, 10b. And if so, it is proper that we explain the verse as follows: he shall surely pay ox for ox “with” the dead beast which shall, belong to him. Similarly, and Joseph was in Egypt,¹⁹⁸ means: “with” Joseph who was in Egypt [they were seventy souls]. Likewise, I cannot endure iniquity ‘va’atzarah’¹⁹⁹ [literally: “and the solemn assembly”] means with the solemn assembly, similar to that which He said, I hate robbery ‘b’olah’ — “with” a burnt-offering.²⁰⁰, 61:8.According to the simple meaning of Scripture it is possible to explain the expression, and the dead shall belong to him — to the one who caused the damage, the verse thus stating: he shall surely pay ox for ox, but he may keep the carcass, so that in making monetary compensation he can turn it over to the one who suffered the damage as part payment. Thus according to both interpretations the law is alike — the owner of the dead animal attends to the carcass, and its value is determined as at the time of its death,²⁰¹ to be taken by him as part payment, according to the words of our Rabbis.²⁰¹