Parashat Mishpatim 5769 / February 21, 2009
the weekly Torah reading by the faculty of
From Oxen to Automobiles
Dr. Itamar Wahrhaftig
This week’s reading includes the law of a goring ox: “If, however, that ox has been in the habit of goring … and it kills a man or a woman – the ox shall be stoned and its owner, too, shall be put to death. If ransom is laid upon him, he must pay whatever is laid upon him to redeem his life” (Ex. 21:29-30).
Several questions arise with respect to this commandment:
Much has been said in this regard. Here we shall present some of the discussion of this subject, drawing a distinction between the plain sense of the text ( peshat) and midrashic-halakhic interpretations (derash).
A. Rashi interprets this passage according to the halakhah:
Its owner, too, shall be put to death – by Heaven. Perhaps it should be done by human hands? Come and learn: “The assailant shall be put to death; he is a murderer” (Num. 35:21). You kill a person for murdering, and you do not kill him for his ox murdering (Sanhedrin 15b).
On the face of it, it might seem that the owner of the ox is exempt from capital punishment but liable to death by heaven (an early death). However, the verse which follows stipulates that there is an option to redeem his life by paying ransom. According to the conclusion drawn in the discussion in Bava Kama 40a, the ransom (kofer) provides expiation ( kapparah) for the owner; however the tannaim were divided over whether he pays the worth of the one who was killed (Rabbi Ishmael), or his own worth (Rabbi Akiva).
What is meant by “if”? Rashi continues to explain: “If here is not conditional; it is like the expression, ‘If you lend money’(Ex.22:24). In other words, this is the law – that the court assesses him ransom.”
We encounter a double difficulty here. First, why did the Torah use the conditional “if” in each of these cases, when it is a matter of obligation? Secondly, the Mekhilta at the end of Parashat Yitro, which Rashi cites in his commentary, mentions three such instances but does not include among them the law regarding ransom. 
Regarding the first question, why the word “if” is used here, Maimonides provides an answer in his ruling (Hilkhot Nizkei Mamon 10.4):
Regarding the fact that the Torah also says that its owner shall be put to death, by tradition it is deduced that he is to be put to death by Heaven, but if he pays ransom then his sin is expiated, and even though the ransom payment is by way of expiation, he may be forced to pledge it against his will.
From what Maimonides wrote it appears that the word “if” does not apply to the obligation itself, which is obligatory, but rather to the actual payment. If he refuses and tries to get out of paying the ransom, he does not avoid the law of death by Heaven. So, making the payment turns out to be a privilege for him; if he uses this privilege and pays, he is delivered from punishment by Heaven. The "if" is thus understood, "if he is fortunate enough to have made the obligatory payment."
B. Hizkuni offers an innovative interpretation, based on the plain sense:
And its owner, too, shall be put to death – according to the plain sense, he is liable to the death sentence since he knew that his ox had a tendency to gore and he did not take suitable precautions to guard him. If … the heirs wish to accept monetary compensation for the killing of their father in whatever sum is laid upon him, since he did not kill him with his own hands the court may assess a ransom payment, given that the heirs are willing to settle for this. Thus when it says, “if ransom,” this does not refer to something which is obligatory.
Note that Hizkuni removes altogether any reference to "death by Heaven." Further, "if" implies that the owner is not obliged on his own account to pay ransom, rather that it is dependent on the desire of the heirs. Some heirs might not be satisfied with receiving a compensation payment for the death of their father, but if they are satisfied, then the court is empowered to oblige the owner of the ox to pay ransom instead of the death penalty. This is unlike the case of a murderer or one who killed accidentally (manslaughter), whose punishment cannot be commuted to monetary terms, as stipulated in Numbers (35:31-32), since killing by his ox is less severe than manslaughter.
This ostensibly implies that if the heirs of the person killed are not willing to accept compensation, the owner may not have the death sentence on him commuted (we must assume this means death by Heaven) by paying ransom. Indeed, Bekhor-Shor, who might have been the source for Hizkuni, writes: “According to the plain sense it appears that if the heirs so desire, he shall die; and if they do desire, they will accept monetary compensation.” 
This is truly a novel interpretation, but it is problematic because of the implication that such a punishment is dependent on the will of the heirs. Be that as it may, according to this approach one might go further and say that if the heirs do not accept ransom, they essentially become blood-avengers, and may take the owner's life themselves. However the author of Or ha-Hayyim rules out this view, making a distinction between manslaughter, in which the blood-avenger is pursuing the killer in “hot anger,” and the relatives of one who was killed by an ox. 
Furthermore, the Netziv writes in his commentary Ha’amek Davar that the heirs may forgo the ransom,  and therefore Scripture says “if.” If they indeed decided to forgo it, then it is as if they had received monetary compensation and the owner of the ox is not liable to punishment by Heaven.
C. Nahmanides also has an innovative interpretation:
The ransom (kofer) is expiation (kapparah), like sacrifices, and therefore if he does not choose to pay it he is not forced to go to court to be assessed a ransom payment, and even if he is charged a payment he is not forced to put up a pledge – for this reason it says “if.”
Nahmanides’ argument is based on the mishnah in Arakhin 5.6, which says that “pledges are not taken from such as are liable to sin-offerings or guilt-offerings.” Indeed, the gemara in Bava Kama (40a) expresses uncertainty regarding taking a pledge or security for the ransom. Nahmanides, in his Torah commentary,  takes the lenient view in this case of doubt (safeq), since expiation is the personal affair of the owner of the ox and it is up to him to decide whether he wishes to receive such expiation or not. Although the gemara in Bava Kama (loc. sit.) implies that this obligation is unconditional and can be forced on the owner, Nahmanides thinks there is no need for this since he would surely see to expiating himself.  Nahmanides' view requires further study.
To sum up, we find that this ransom is a payment for expiation, ransoming the life of the owner of the ox from the punishment of death by Heaven that is placed on him.
As for the relationship between the two punishments:
We conclude with a message for our times: When a person does not guard his ox and his ox kills someone, he commits a very serious crime. He is liable to death by Heaven and in practice may, and is obliged to, commute this punishment by paying ransom. From this we learn how important it is for a person to safeguard his material possessions that have the potential of killing. True, inanimate possessions are not the same as an animal, but they too can easily become instruments of destruction. The like applies to one’s car. Although an automobile is not animate, a person who drives recklessly, and especially someone who is negligent about keeping his car in proper running condition, can cause death. It should be noted that an automobile is not considered like a goring ox, rather, killing a person with one’s car is considered like killing with one’s own hands, nevertheless certain similarities to the case of a goring ox can be discerned.
 R. Eliyahu Mizrahi, one of Rashi's supercommentaries, makes this query regarding Rashi’s interpretation here. Torah Shelemah, loc. sit., par. 546, suggests that Rashi might have had a variant text of the Mekhilta which did include the "if" of the law of ransom, as follows from Midrash ha-Gaddol on this point. However, it does not seem so from the text of Rashi which we have at the end of Parashat Yitro.
 Bekhor-Shor (R. Joseph of Orleans, 12th century France) presents another interpretation as well: “and its owner, too, shall be put to death – in certain cases he may be liable to the death sentence, as in the case that he lets his ox wander off unattended so that he will kill a person whom he hates, and he [the ox] kills him. In such a case he must receive the death sentence, for it is as if he killed the person with his own hands.” This interpretation, too, contravenes the halakhah, as noted by the author of Torah Shelemah (loc. sit.), on the basis of the law providing that if a person sets a dog on someone and the dog kills him, he is not liable to the death penalty (see Sanhedrin 76b).
 Kli Hemdah thinks, based on Hizkuni's explanation, that if the owner of the ox should refuse to pay ransom according to the request of the heir, then the heir attains the status of a blood-avenger who would not be liable for killing the owner of the ox. The author of Torah Shelemah, however, (loc. sit., par. 543) rejects this. He explains that the author of Or Ha-Hayyim wished to rule out the approach taken by the Karaites, who believed that if the owner does not pay the ransom then he is to be exiled [to a city of refuge], and his status is that of one who killed by accident.
 Contrary to the opinion of Tosefot on Bava Kama 43a, s.v. mai. From what he says it appears that only actual payment can deliver him from death by Heaven. Thus one can explain the words, “whatever is laid upon him,” i.e., that he must pay the entire ransom, and not even a part of it may be forgiven.
what is implied by his remarks in Milhamot
Ha-Shem, a supercommentary on the Rif (R. Yitzhak
Alfasi), in tractate
Bava Kama (18.1, in the
 From Kezot ha-Hoshen, par. 9.1, it appears that coercion is of no avail, since there can be no expiation against one’s will, and coercion will not lead to the person willing it.
 For further reading on the status of the heirs, see Tos. Bava Kama 40a (s.v. hayyavei), and Lehem Mishneh on Maimonides, Hilkhot Nizkei Mamon, loc. sit.