Commentary for Bava Kamma 78:18

אמר ליה רב אחא בר אביי לרבינא בשלמא לאביי דאמר פליגי שפיר אלא לרבא דאמר לא פליגי אדמוקי לה במועד נוקמא בתם

that [even in the case of <i>Mu'ad</i>, half of the payment, i.e.] the part due from <i>Tam</i> remains unaffected [being still subject to the law of <i>Tam</i>]; he also concurred with R. Judah in holding<span class="x" onmousemove="('comment',' Infra p. 259. ');">¹³</span> that to procure exemption from the law of <i>Mu'ad</i> even inadequate precautions are sufficient;<span class="x" onmousemove="('comment',' But this would not be sufficient in the case of Tam. Where therefore such a precaution has been taken to control a Mu'ad, the half-damages for which the Tam is liable would be enforced, but not the additional damages for which the Mu'ad is liable. ');">¹⁴</span> and he furthermore followed the view of the Rabbis<span class="x" onmousemove="('comment',' The Sages, whose view was explained supra. ');">¹⁵</span> who said that a guardian could be appointed in the case of <i>Tam</i> to collect payment out of its body.<span class="x" onmousemove="('comment',' Hence R. Jacob's ruling for the payment of half-damages. ');">¹⁶</span> Said Abaye to him:<span class="x" onmousemove="('comment',' I.e., to Raba. ');">¹⁷</span> Do they<span class="x" onmousemove="('comment',' R. Jacob and R. Judah. ');">¹⁸</span> really not differ? Has it not been taught: 'Where the ox of a deaf-mute, an idiot or a minor has gored, R. Judah maintains that there is liability to pay and R. Jacob says that the payment will be only for half the damage'? — Rabbah b. 'Ulla thereupon said: The 'liability to pay' mentioned by R. Judah is here defined [as to its amount] by R. Jacob.<span class="x" onmousemove="('comment',' Who thus makes precise what R. Judah left unspecified. ');">¹⁹</span> But according to Abaye who maintained that they did differ, what was the point at issue between them? — He may tell you that they were dealing with a case of <i>Mu'ad</i> that had not been guarded at all, in regard to which R. Jacob would concur with R. Judah on one point but differ from him on another point. He would concur with him on one point, in that R. Judah lays down that [even with <i>Mu'ad</i> half of the payment, i.e.] the part due from <i>Tam</i> remains unaffected; but he would differ from him on another point, in that R. Judah lays down that a guardian should be appointed in the case of <i>Tam</i> to collect payment out of its body, whereas R. Jacob is of the opinion that a guardian could not be appointed and there could therefore be no payment except the half [which should be subject to the law] of <i>Mu'ad</i>.<span class="x" onmousemove="('comment',' Which is paid out of the general estate. ');">²⁰</span> Said R. Aha b. Abaye to Rabina: All would be very well according to Abaye who maintained that they differ;<span class="x" onmousemove="('comment',' I.e., that R. Jacob maintained that no guardian could be appointed in the case of Tam, and R. Judah that he could. ');">²¹</span> he is quite right [in explaining the earlier statement of R. Jacob<span class="x" onmousemove="('comment',' Where the view of R. Judah was not mentioned at all. ');">²²</span> to apply only to <i>Mu'ad</i>].<span class="x" onmousemove="('comment',' Where no precaution to control the ox has been taken. ');">²³</span> But according to Raba who maintained that they do not differ, why should the former statement [of R. Jacob] be referred only to <i>Mu'ad</i>? Why not also to <i>Tam</i>,

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