“It Excludes An Ox Which Gored…”
(Baba Kamma 13b)
The baraita on our daf explains the Mishna’s statement (supra 9b) regarding “nechasim ha’meyuchadim” (property that is owned, lit. property whose ownership has been assigned) as setting limits to payment for damages incurred by one’s animal only in those instances where the animal remains in one’s possession. However, if the animal was subsequently declared hefker (ownerless) or was dedicated to the sanctified domain, there would be no payment for any damages.
The Tur (Choshen Mishpat 406), however, rules that should the mazik (the damager, that is, the person whose animal caused the damage) subsequently reclaim the animal and take it into his possession, he would be obligated to pay for any damages it causes.
Two verses in the Torah (Exodus 21:35-36) are our source for the amount to be paid for damages incurred. We deduce from the first verse that if the animal is usually docile (tam) and has never caused damage before, its owner pays only for half the damage (chatzi nezek), up to a maximum of the animal’s value. Thus, if one’s animal caused damage that exceeded its value, the payment of “half the damage” shall not exceed that value (Bava Kamma 14a).
According to the second verse, if the animal is classified as mu’ad, i.e., one that has established itself as a habitual damager, the owner must pay full damages even if the damage exceeds the animal’s value.
From our Gemara’s discussion, it would seem that whenever one’s animal causes damage beyond its own value, one could simply declare it ownerless or dedicate it to the sanctified domain and thus totally circumvent the obligation to make restitution.
This question is indeed raised by both Pilpula Charifta (to the Rosh, siman 16:40) and Hagahot Chavot Yair (to the Rif, folio 5a in the pages of the Rif, Vilna Shas).
Imrei Bina (to our sugya) therefore postulates that the very act of disowning the damaging animal is considered as participation in the act of nezek (damage) because by so doing he deprives the grieved party of his right to collect the payment due.
He explains that only if a person declared his animal ownerless while he was unaware that the animal had caused damage would he not be held accountable for any payment.
But if he was fully aware that his animal had caused damage and only declared it ownerless to avoid restitution, he would indeed incur liability.