No Reciprocity: Bava Kamma 37

By: Rabbi Jay Kelman |
 
“The ox of a Jew who gores the ox belonging to the Temple or the ox of the Temple that gores the ox of the Jew they are exempt from payment as the verse says ‘shor re’eihu’, the ox of your neighbour.” (Bava Kamma 37b) This is a rather perplexing law and it may be the reason the Mishna brings a proof text for this law, something we rarely see in the Mishna. Absent this proof text one would have likely made a kal vachomer, that if one is liable for damages done to a friend how much more so should one be liable for damages to Temple property. Surely it is worse to damage public property, especially if that property be of a religious nature. And yet for reasons not readily apparent the Torah specifically limits damages to those classified as re’eihu, our neighbour. Perhaps damaging Temple property is such that money is not the proper form of restitution.   
 
Yet even more perplexing is the second law of the Mishna. “The ox of a Jew that gores the ox of a heathen [the owner] is exempt; the ox of a heathen that gores the ox of a Jew [the owner] is liable.” Such a notion seems to go against all notions of fairness, equality before the law and is blatantly discriminatory. Furthermore it does nothing to sanctify the name of G-d and runs the risk of doing the opposite. It certainly is not in keeping with the actions of Rav Safra (Rashi, Makkot 24a) who had a heathen approach him offering to purchase his donkey. As Rav Safra was reciting the shema he did not answer and the heathen kept raising his offer. When Rav Safra finished the shema he declared that he will accept the first and lowest offer as when it was made he had agreed in his mind to accept it. 
 
Nor is such a law in keeping with the actions of Shimon ben Shetach who insisted on seeking out the owner so that he may return a valuable jewel found in fish he had purchased. When told the find would make him a rich man he exclaimed “do you think that I am a barbarian?” as he insisted it be returned. 
 
Our tradition abounds with stories of our Sages acting with the utmost integrity especially as it regards the non-Jew, sanctifying G-d’s name in the process. And not surprisingly when the lost jewelry was retuned the heathen exclaimed “praised be the G-d of Shimon ben Shetach.” (Yerushalmi, Bava Metzia 2:8)
 
The Gemara immediately queries the Mishna’s ruling on textual grounds. Which is it? If the word reeihu is be taken literally then a heathen owned ox who gores a Jewish owned ox should also be exempt. And if reeihu is not meant in a narrow sense as referring to only Jews, then a Jewish owned ox would be required to pay when his ox gores property of the person of a non-Jew. 
 
Yet textual analysis generally goes hand in hand with ethical obligations[1]. The Gemara thus lays the framework for the obligations between people, that of reciprocity. Reuven is obligated to help Shimon or Christopher for that matter because Shimon or Christopher is obligated to help Reuven. 
 
This concept can actually be found in the Torah itself. In explaining the obligation to give tzedakah to the needy the Torah tells us that we must do so because “the poor will never cease from the land; therefore I command you, saying: patoach tiftach, you shall open open your hand unto the poor and needy brother, in thy land.” (Devarim 15:11)
 
This is a rather strange reason to give tzedakah. Should the Torah not have said we should give tzedakah so that we may eradicate poverty? Yet the Torah says the exact opposite! 
 
While we are bidden to eliminate poverty as best we can, the Torah is letting us know that such will never be achieved[2],[3]. And that is precisely why I must give tzedakah. Since poverty will never cease there is a good chance - certainty would be a better word - that those who give tzedakah today may need it tomorrow. If not personally then their children, grandchildren or great grandchildren. This is an inescapable fact of history. If one can give tzedakah out of the goodness of one’s heart that is great. But if not you should still give tzedakah because one day you or someone dear to you will need it. 
 
So why then this discriminatory law regarding the goring oxen? The Gemara explains that we are dealing with those who ignore even the most basic laws of morality. Do not steal is not part of their operating system. When dealing with such people we often have little choice but to discriminate, to fight fire with fire, They would do the same to us. 
 
In the midst of this discussion the Gemara quotes Rav Meir’s teaching that “even a non-Jew who is involved in Torah is like the High Priest.” As Tosafot explain the High Priest is the one who can come closest to G-d being the only person allowed to enter the Holy of Holies. Yet Rav Meir teaches that priests do not have a monopoly of coming close to G-d. All who are involved in Torah are equally, actually even greater in their proximity to G-d. Nor do Jews have such a monopoly. Non-Jews who follow the teachings of Torah - and in this context we refer to the mitzvoth between man and man - are no less special.
 
[1] And in those instances when the text is at odds with our moral sense the Sages would often limit application of the text, such for example greatly restricting the application of the death penalty. 
 
[2] There is a great message here. We must work to solve problems even if we know we cannot succeed 100%. Partial success is great success.
 
[3] Perhaps one reason this is so is because as important as helping the poor is, the mitzva of tzedakah has a second component no less important than the first, that of ensuring the wealthy share with others.