Commentary for Bava Kamma 79:28

ונימא ליה

'In the case of debtors for valuations<span class="x" onmousemove="('comment',' I.e. vows of value dealt with in Lev. XXVII, 2-8. ');">²³</span> the Sanctuary treasury may demand a pledge, whereas in the case of those who are liable to sin-offerings or for trespass-offerings<span class="x" onmousemove="('comment',' Which are intended to procure atonement and which will consequently not be put off. ');">²⁴</span> no pledge can be enforced.' Now, what would be the law in the case of those liable to <i>kofer</i>? [Shall it be said that] since <i>kofer</i> is a kind of propitiation it should be subject to the same ruling as sin-offerings and trespass-offerings,<span class="x" onmousemove="('comment',' Which are intended to procure atonement and which will consequently not be put off. ');">²⁴</span> the matter being of serious moment to the defendant so that there is no necessity of enforcing a pledge from him; or [shall it] perhaps [be argued that] since it has to be given to a fellow man it is [considered] a civil liability, and as it does not go to the Temple treasury,<span class="x" onmousemove="('comment',' [Lit., 'To the (Most) High.' Read with MS.M. 'Since it has to be given to a fellow man and not to the Treasury, it is a civil liability.'] ');">²⁵</span> it is consequently not taken too seriously by the defendant, for which [reason there may appear to be some] necessity for requiring a pledge? Or, again, since the defendant did not [in this case] himself commit the wrong, for it was his chattel that did the wrong [and committed manslaughter], the whole matter might be considered by him as of no serious moment, and a pledge should therefore be enforced? — He<span class="x" onmousemove="('comment',' R. Nahman. ');">²⁶</span> said to him: 'Leave me alone; I am still held prisoner by your first problem [that has not yet been answered by me].' Our Rabbis taught: If a man borrowed an ox on the assumption that it is in the state of <i>Tam</i> but is subsequently discovered to have already been declared <i>Mu'ad</i>, [if goring is repeated while still with the borrower] the owner will pay one half of the damages and the borrower will pay [the other] half of the damages. But if it was declared <i>Mu'ad</i> while in the possession of the borrower, and [after it] was returned to the owner [it gored again], the owner will pay half the damages while the borrower is exempt from any liability whatsoever. The Master stated: 'If a man borrowed an ox on the assumption that it is in the state of <i>Tam</i> but was subsequently discovered to have already been declared <i>Mu'ad</i>, [if goring is repeated] the owner will pay one half of the damages and the borrower will pay [the other] half of the damages.' But why should the borrower not plead against the owner, 'I wanted to borrow an ox, I did not want to borrow a lion?' — Rab said: we are dealing here with a case where the borrower knew the ox to be a gorer.<span class="x" onmousemove="('comment',' Though he did not know that the ox had been declared Mu'ad. ');">²⁷</span> Still why can he not plead against him: 'I wanted to borrow an ox in the state of <i>Tam</i> but I did not want to borrow an ox that had already been declared Mu'ad'? — [This could not be pleaded] because the owner might argue against him: 'In any case, even had the ox been still <i>Tam</i>, would you not have to pay half-damages? Now, also, you have to pay one half of the damages.' But still why can he not plead against him: 'Had the ox been <i>Tam</i>, damages would have been paid out of its body'?<span class="x" onmousemove="('comment',' And not from my own estate. ');">²⁸</span> — [This could similarly not be pleaded] because the owner might contend: 'In any case would you not have had to reimburse me [to the full extent of] the value of the ox?'<span class="x" onmousemove="('comment',' In payment of the ox you borrowed from me. ');">²⁹</span> Why can he still not plead against him:

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