Roaring Lions and Goring Oxen

If the lion would have eaten a pet it encountered in the street, would the circus be liable according to halacha? Shumel seemingly says it would not be liable. In fact, the Gemara does not quote any disagreement on this issue. Tosfos indeed holds this way. Yet, the Vilna Gaon points out that the Rambam disagrees with Tosfos’s understanding of the Gemara. The Rambam and the Shulchan Aruch both rule that the circus would be liable. This is but one example of the danger of ruling based on a Gemara without further research. One can learn the Gemara, Rashi, and Tosfos without even an inkling of the idea that there is a debate on this issue. The Vilna Gaon’s notation on the page is the learner’s sole hint to something being amiss. However, that notation itself is only two words, and is itself cryptic! As an aside, even Tosfos may concede nowadays that the owner of the circus is liable.

The reader might say, “I’ve been learning all these halachos of damages caused by animals in Bava Kama, and none of them have been relevant. OK, at least there is one solitary application of the Gemara I studied.”

Whether Gemara has any practical application or not, there is still a mitzvah to study the entire Torah and know it to the best of one’s ability. However, even if there is no exact application of the material, the concepts may be relevant elsewhere. Indeed, Rashi on Kesubos says that even the logic of a sage who is clearly wrong (he misquoted someone for example) still has relevance. While the application the sage was positing is incorrect, the logic may be relevant elsewhere. A recent Gemara provides a great example.

The first part of Mesechta Bava Kama deals extensively with the halacha of a goring ox. The first three times an ox gores and injures another animal, the owner must pay half of the resultant damages for each goring. The fourth time an ox gores, the owner must pay full damages to the owner of the injured animal. (This is a very simplistic rendition. The actual halachos or much more complex.) Rebbe Yehuda says that for the owner of the goring ox to be liable for full damages, the ox must gore three times, each time on a different day. Rebbe Meir disagrees. He reasons that if goring on three separate days renders the owner liable, certainly if the animal would gore three times on the same day, the owner would then be liable to full damages on the fourth time. The halacha follows Rebbe Yehuda.

Seemingly, this discussion about goring oxen has little practical relevance (Although, every few years, a cow escapes from a slaughterhouse in Kew Gardens, Queens, NY.) Certainly, the opinion of Rebbe Meir isn’t relevant because we don’t even pasken like him!

Yet, the Mahram M’Rottenburg cites Rebbe Meir for a very relevant halacha. The Sages instituted that one recite “V’sein tal u’matar” during the growing season in the middle of Shemoneh Esrei. We ask Hashem specifically for dew and rain instead of the generic “blessing.” This change takes place at Maariv on December 4th or 5th in the United States (not in Israel). (During the year before a solar leap year, it is Dec 5th.) If one does not say the correct formula, he must repeat Shemoneh Esrei, if he already finished. What if one is not sure if he said the correct formula or not? Must he repeat Shemoneh Esrei? Less than 30 days after making the switch, he must assume that out of habit he recited the wrong formula and must repeat Shemoneh Esrei. After 30 days of reciting the correct formula, he may assume he indeed said the correct one.

The Mahram M’Rottenberg offered a creative idea. One can just say the words “V’es kol minay sevuasah l’tova v’sein tal u’matar l’vracha” 90 times to get into the habit of saying the correct formula. Thereafter, if one is unsure what he recited even a week after the formula change, he would not need to repeat Shemoneh Esrei. We would say that the 90-time recitation habitualized him to recite the correct formula. Where did the Maharam source his idea from? Rebbe Meir of our Gemara. Rebbe Meir reasoned that if goring an animal three times over three days develops a bad habit of goring, then certainly goring three times in one day develops the bad habit. So, too, here, if saying the correct formula over 30 days develops a habit of saying the correct formula, then saying all the occurrences in one day should certainly develop the habit. Although, we don’t pasken like Rebbe Meir regarding an ox goring, possibly due to a verse, we still accept his logic and apply it elsewhere!

The Maharam’s ruling is cited as practical halacha by the Shulchan Aruch.