The Goring Ox of Equal Value and Dividing the Live and the Dead

Yalkut Shimoni on Torah 341:22

Our Rabbis taught: An ox worth two hundred that gored an ox worth two hundred, and the carcass is worth three zuz, this one takes half of the living and half of the dead and that one takes half of the living and half of the dead, and this is the ox spoken of in the Torah. These are the words of Rabbi Yehudah. Rabbi Meir says: This is not the ox spoken of in the Torah. Rather, which is the ox spoken of in the Torah? An ox worth two hundred that gored an ox worth two hundred, and the carcass is worth nothing at all; concerning this it is said, "They shall sell the live ox and divide its price" (Exodus 21:35). Then how do I uphold "and also the dead they shall divide"? The loss that death caused to the carcass they divide out of the live one. Now whether according to Rabbi Meir or according to Rabbi Yehudah, this one takes a hundred and twenty-five and that one takes a hundred and twenty-five; what is the difference between them? The enhancement of the carcass is between them. Rabbi Meir holds that the enhancement of the carcass belongs to the one injured, and Rabbi Yehudah holds they split it. And this is what was difficult for Rabbi Yehudah: Now that you have said the Merciful One had compassion on the one who caused damage, so that he takes even of the enhancement, one might think that an ox worth five selas that gored an ox worth a maneh, and the carcass is worth fifty zuz, this one takes half the live and half the dead and that one takes half the live and half the dead. You said: Where have we found a damager who profits, that this one should profit? And it says "he shall surely pay" (Exodus 21:36): owners pay and owners do not take. What is the force of "and it says"? This is what it states: And should you say these words apply only where the injured party has a loss, but where the injured party has no loss, such as an ox worth five selas that gored an ox worth five selas and the carcass is worth thirty zuz, he too takes of its enhancement, therefore Scripture teaches "he shall surely pay": owners pay and owners do not take. Rav Tachlifa said to Rava: If so, we have found according to Rabbi Yehudah that an innocent ox pays more than half-damage, yet the Torah said "they shall sell the live ox and divide its price"! Rabbi Yehudah holds that the loss which death caused to the carcass they take from the half, out of the live one. From where does he derive it? From "and also the dead they shall divide." But did not Rabbi Yehudah already apply this verse to "this one takes half the dead and half the live"? If so, let the Merciful One write "and the dead"; what is "and also"? Learn from it two teachings.

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