When a Goring Ox Kills Children the Law Counts Them as Adults

Mekhilta DeRabbi Shimon Ben Yochai 21:31

"Whether it gores a son or gores a daughter" (Exodus 21:31). Why do I need this? Has it not already been said (Exodus 21:28), "If an ox gores a man or a woman so that he dies"? What does "whether it gores a son or gores a daughter" come to teach? To treat minors like adults. And this could be argued by reasoning: a person is liable for [killing] a person, and an ox is liable for [killing] a person. Just as we find that for a person killing a person no distinction was drawn between minors and adults regarding death, so here too no distinction is drawn between minors and adults regarding death. And further, an argument from the lighter to the heavier: if in a case where one is not made liable for minors as for adults, one is nonetheless liable for minors as for adults, then here, where one is made liable for minors as for adults, is it not right that we hold liable for minors as for adults? No: if you say so of a person killing a person, who pays for the shame, would you say so of this case, where one does not pay for the shame? Therefore Scripture teaches, "whether it gores a son or gores a daughter." I know this only of a forewarned ox; from where do I learn an innocent ox? It can be argued: one is liable for a son and a daughter, and one is liable for a man and a woman. Just as for a man and a woman no distinction was drawn between an innocent ox and a forewarned one regarding death, so for a son and a daughter let no distinction be drawn between innocent and forewarned regarding death. And further, an argument from the lighter to the heavier: if for a man and a woman, whose claim in damages is weaker, no distinction was drawn between innocent and forewarned regarding death, then for a son and a daughter, whose claim in damages is stronger, is it not right that we draw no distinction between innocent and forewarned regarding death? You say: thus we reason. But we reason from the heavier to the lighter so as to be stringent, and if the law was stringent with the forewarned ox we would be stringent with the innocent. Therefore Scripture teaches, "whether it gores a son or gores a daughter": two gorings here, a goring for the forewarned and a goring for the innocent. I know this only of the whole [body]; from where do I learn its limbs? Scripture teaches, "whether it gores a son or gores a daughter": two gorings here, a goring for death and a goring for damages. "According to this judgment it shall be done to it": as the judgment of the forewarned ox, so the judgment of the innocent ox. And five kinds of beast are forewarned from the beginning of their creation and require no testimony: the wolf, the lion, the bear, the leopard, and the bardelas [hyena or panther].

Themes