In this masechet we learn about the difference between a tam and a mu’ad in the class of damage keren (unusual damage caused by one’s animal or property, e.g., goring). In the first few instances of such damage, the animal is defined as a tam and the owner is liable to pay half the damage caused. If the animal has been established as an animal that regularly causes such damage then the owner is liable to pay full compensation (see 2:4).
One Mishnah (3:8) discussed how compensation is determined if two animals each inflict such damage on each other. At first glance this Mishnah appears to be a simple exercise in mathematics. Indeed Tosfot (Bava Kama 33a s.v. shnei) question the need for this Mishnah at all. One line however in the Mishnah is debated by the Rishonim (as noted by Kehati):
If damage caused by the mu’ad is in excess of the damage caused by the tam, the owner of the mu’ad will pay full compensation of the excess. If damage caused by the tam is in excess of the damage caused by the mu’ad, the owner of the tam will pay half compensation of the excess.
How do we understand the above Mishnah? According to the Rambam (Nizkei Mamon ) the first step is to determine the liability of each of the parties. Half the damage caused by the tam is compared to the damage cause by the mu’ad. The excess is then paid by the owner. Using the Rosh’s example if the tam caused \$40 damage and the mu’ad caused \$50 damage, the owner of the mu’ad would be liable \$30 (the damage his animal caused minus half the damage caused by the tam). This is consistent with the liabilities placed on the owner of a tam and the owner of a mu’ad. What is being compared here is the liabilities of each of the parties. This would also be how Tosfot understands the Mishnah as such a presentation contains no novel ideas.
Rashi (see Rosh ) however reveals the new point in the Mishnah. He understands that in the above case, the full damage caused by each of the animals is first compared. Therefore using the above example, the owner of the mu’ad would be liable \$10. Halving the liability placed on the owner of the tam is only brought into effect when considering the excess damage caused by the tam. Even though this understanding fits the simple wording of the Mishnah, it appears to contradict the liability placed on the owner of a tam. Why are we considering more than half the damage caused by the tam?
The Rosh understands that Rashi believes that since the animals attacked each other simultaneous, the only damage viewed with an eye for compensation is that damage done by one in the excess of the other. It appears that Rashi understands that in such a “sparring contest” we take wound for wound and right it off. Why?
Perhaps we can explain these two understanding by returning to the first Mishnah. The closing statement is that the common factor amongst the four primary classes of damage is that “they have the potential to cause damage and the owner is responsible for guarding them [from damaging]”. The also inserts an extra parameter - “they are your property”. Rashi agrees with this insertion (see Rashba 2a) while the Tosfot is against it (3b s.v. u’mamoncha, 4a s.v. adam).
What does it matter whether “they are your property” is added to the Mishnah. Rav Moshe Taragin explains, assuming that the owner’s negligence makes him liable for damage caused, the debate is whether some form of legal ownership is required for that obligation. Offering a slightly different understanding, one way to look at it is that as soon as the animal is no longer guarded, the owner is being negligent and therefore the owner is liable for anything the animal does. The obligation begins before damage is even caused. Alternatively a oxen running wild does not create the obligation; neglect alone is not necessarily enough. It is only after the damage is done that we trace it back to the financial owner of this wild animal to collect compensation.
Returning to our original case, we may suggest that those (Rambam, Tosfot) that first half the damage caused and then work out the difference may understand that neglect alone is enough (Tosfot) and the owner is obligated from the outset for anything the animal did. In contrast those that compare the damage in full and only determine compensation (or half compensation) based on the difference in actual damage (Rashi, Rosh) may understand that compensation is only determined once the damage is caused and traced back to the owner (Rashi). In this case the “damage” is the difference in actual damage caused.
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