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Exodus 21:36 - Negligence demands full restitution.

Exodus 21:36 - שמות 21:36

Hebrew Text

אוֹ נוֹדַע כִּי שׁוֹר נַגָּח הוּא מִתְּמוֹל שִׁלְשֹׁם וְלֹא יִשְׁמְרֶנּוּ בְּעָלָיו שַׁלֵּם יְשַׁלֵּם שׁוֹר תַּחַת הַשּׁוֹר וְהַמֵּת יִהְיֶה־לּוֹ׃

English Translation

Or if it be known that the ox has long been in the habit of goring, and his owner has not kept him in; he shall surely pay ox for ox; and the dead shall be his own.

Transliteration

O noda ki shor nagach hu mitmol shilshom velo yishmerenu be'alav shalem yeshalem shor tachat hashor vehameit yihiyeh-lo.

Hebrew Leining Text

א֣וֹ נוֹדַ֗ע כִּ֠י שׁ֣וֹר נַגָּ֥ח הוּא֙ מִתְּמ֣וֹל שִׁלְשֹׁ֔ם וְלֹ֥א יִשְׁמְרֶ֖נּוּ בְּעָלָ֑יו שַׁלֵּ֨ם יְשַׁלֵּ֥ם שׁוֹר֙ תַּ֣חַת הַשּׁ֔וֹר וְהַמֵּ֖ת יִֽהְיֶה־לּֽוֹ׃ <span class="mam-spi-samekh">{ס}</span>        
א֣וֹ נוֹדַ֗ע כִּ֠י שׁ֣וֹר נַגָּ֥ח הוּא֙ מִתְּמ֣וֹל שִׁלְשֹׁ֔ם וְלֹ֥א יִשְׁמְרֶ֖נּוּ בְּעָלָ֑יו שַׁלֵּ֨ם יְשַׁלֵּ֥ם שׁוֹר֙ תַּ֣חַת הַשּׁ֔וֹר וְהַמֵּ֖ת יִֽהְיֶה־לּֽוֹ׃ {ס}        

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Parasha Commentary

Context in the Torah

This verse (Exodus 21:36) appears in the section of Mishpatim, which details civil and tort laws. It follows the previous verse (21:35) discussing an ox that kills another ox unintentionally. Here, the Torah addresses a case where the ox is a known gorer (shor nagach), and its owner failed to properly restrain it.

Explanation of the Verse

The verse establishes liability for an owner whose ox has a documented history of goring (mi'temol shilshom—literally "from yesterday and the day before"). If the owner neglected to guard it properly, he must pay full compensation (shalem yeshalem), replacing the dead ox with a live one, while the carcass of the gored ox remains his property.

Key Halachic Principles

  • Negligence (Peshiya): Rashi (Exodus 21:36) explains that once an ox has gored three times, the owner is presumed to be aware of its dangerous nature (mu'ad). Failure to guard it constitutes negligence, making him fully liable.
  • Full Compensation: Unlike an ox without a goring history (tam), where the owner pays only half damages, here he pays full value (shalem). Rambam (Hilchot Nizkei Mamon 1:4) rules this applies even if the ox was properly guarded but still caused damage, due to its established danger.
  • Carcass Retention: The owner of the goring ox keeps the dead animal (vehameit yihyeh lo). The Talmud (Bava Kama 34b) derives from this that the injured party cannot claim both full compensation and the carcass.

Midrashic Insight

The Mechilta (on this verse) connects this law to the broader ethical principle of responsibility: just as one must restrain a dangerous animal, so too must a person guard their harmful tendencies (yetzer hara). The owner’s liability underscores the Torah’s emphasis on preventing foreseeable harm.

Practical Implications

This law forms the basis for tort liability in Halacha, teaching that one must take reasonable precautions to prevent damage caused by their property. The distinction between tam (innocuous) and mu'ad (habitually dangerous) animals parallels modern legal concepts of negligence and strict liability.

📚 Talmud Citations

This verse is quoted in the Talmud.

📖 Bava Kamma 23b
The verse is discussed in the context of the laws regarding an ox that is known to gore, and the owner's liability for damages caused by such an ox.
📖 Bava Kamma 24a
Further discussion on the liability of the owner for an ox that is known to gore, referencing the verse to establish the legal principles.
📖 Bava Kamma 41b
The verse is cited in a discussion about the compensation required when an ox causes damage, emphasizing the owner's responsibility to guard the ox if it is known to be dangerous.

Frequently Asked Questions

Q: What does Exodus 21:36 mean?
A: Exodus 21:36 discusses the law of a goring ox (shor nagach). If an ox is known to habitually gore ('from yesterday and the day before') and its owner fails to guard it properly, the owner must fully compensate the victim by replacing the damaged ox ('ox for ox'). The dead ox (the gored one) then belongs to the negligent owner. This teaches responsibility for damages caused by one's property.
Q: Why is the distinction made between an ox that gores occasionally and one that gores habitually?
A: The Torah distinguishes between a 'tam' (innocuous ox that gores for the first time) and a 'mu'ad' (habitual gorer, as in this verse) based on the owner's awareness and negligence. A habitual gorer poses a known danger, so the owner is held fully liable (paying full damages) for failing to restrain it, whereas a first-time gorer involves lesser liability (half damages). This is derived from the previous verse (Exodus 21:35) and explained in the Talmud (Bava Kamma 23b).
Q: How does this law apply today?
A: While we no longer have oxen causing damage in cities, the principle applies to any scenario where a person's property or actions cause harm due to negligence. For example, if someone owns a known dangerous animal or fails to maintain a hazardous property condition, they are liable for damages. This is the foundation for tort laws in Halacha (Jewish law), as codified by the Rambam (Hilchot Nizkei Mammon 1–2).
Q: What does 'ox for ox' mean in practical terms?
A: 'Ox for ox' means the negligent owner must replace the dead ox with a live ox of equal value (not merely pay money). However, the Talmud (Bava Kamma 3a) explains that in practice, monetary compensation is given based on the ox's value at the time of damage. The verse emphasizes full restitution—unlike a first-time goring case (Exodus 21:35), where only half is paid.
Q: Why does the dead ox belong to the negligent owner?
A: Since the owner failed to guard a known danger, the Torah assigns them ownership of the dead ox as part of their penalty. Rashi (on Exodus 21:36) explains that this prevents the victim from 'profiting' by receiving both compensation and keeping the dead ox. It also reinforces the owner's accountability—they bear the loss of both the dead ox and the replacement.