Translation:Shulchan Aruch/Choshen Mishpat/396

Paragraph 1- In a case of warned-ox, or a case of tooth or foot-damage which the animal is warned originally for, only a minimal watching is required. Thus, if the owner tied it with a leash or guarded with a minimal watching and the animal went out and damaged, he would be exempt. When is this true? In the case of a warned ox. With respect to an unwarned-ox, however, a leash or minimal watching would not suffice and the owner must watch a superior watching. What is a superior watching? A door that can even withstand a typical wind. A minimal watching is where it can withstand a typical wind but not an atypical one. If it cannot even withstand a typical wind, it is as if the owner did not watch it at all and he would be liable, even if the door did not fall from the wind but thieves took out the animal, dug it up or dug under the door and caused it to fall, because the owner was originally negligent vis a vis the door falling, and ultimately there was unavoidable accident vis a vis the digging, and we rule that the owner is liable in any case of original negligence and ultimate accident that comes as a result of the negligence. If the animal dug out a hole, however, the owner would be exempt, because the accident did not occur as a result of the negligence.

Paragraph 2- If the owner watched the animal appropriately and it was breached at night or it dug out the door and left and damaged, the owner would be exempt, even if he knew of the breach, because he is not required to go out and trouble himself over the animal. This is only where it was breached at night. If it was breached during the day, however, he would be liable because there would be chatter and we can assume the owner knew.

Paragraph 3- If thieves took out the animal, they would be liable from the time they pulled it or hit it with a stick to get it to leave. This is only where they took the animal to rob it. If they took it to destroy it, however, they would be exempt.

Paragraph 4- If one breaches a fence in front of another’s animal, and the animal went out and damaged, and the fence was firm and strong, the person that breached would be liable. ''There are those who say that he would not be liable for damage by the animal unless he hit the animal and prepared it to damage. This is the primary view. There are those who say he wouldn’t even be liable for the actual animal if it was misplaced.'' If the wall was shaky, he would be exempt under human law but liable under heavenly law.

Paragraph 5- If the owner left the animal in the sun, even if the animal dug out and escaped, the person that left him there would be liable, because since he left it in the sun the animal was uncomfortable and was going to do whatever it could to escape. Thus, even if it was tied with a strong knot he would still be liable.

Paragraph 6- If one gave over an ox to a deaf-mute, fool or minor, even if the ox was tied, the owner would be liable because it is typical for an ox to untie the knot, leave and damage. Even if the watchman watched it with a superior protection, and it dug out, left and damaged, the owner would still be liable.

Paragraph 7- If one gave his ox to five people, and one of them was negligent and the animal went out and damaged, and the animal could only have been watched with all five of them, the party that was negligent would be liable. If the animal can be watched with others, the others would also be liable. There are those who say that this is only where the others said that because he does not want to watch they too are removing themselves from watching. If they did not remove themselves from watching, however, he would be exempt and they would be liable.

Paragraph 8- If one gave over the ox to one of the four watchmen, the presumption is that the watchman has agreed to protect the animal from damaging and from being damaged. This is only in the case of a standard ox. If the watchmen knows that this ox has a reputation for goring, however, he is only agreeing to protect it from damaging, but not from getting damaged. If the watchman did not watch it at all, and the animal went out and damaged, the watchman would take the place of the owner and would pay half the damage for an unwarned-ox and full damage for a warned-ox, and the owner would be exempt. If after the unwarned-ox damaged while in the watchman’s domain, the watchman told the owner here is your ox in front of you, he has not said anything because the court will take the ox to pay off the victim from it. If the watchman watched it properly with a superior watching, the watchman would be exempt and the owner would only be liable for horn-damage, which he is unwarned for. With respect to tooth and foot-damage, however, the owner would be exempt. If the watchman watched an inferior watching and he is an unpaid watchmen, he would be exempt. If he was a paid watchman, renter or borrower, he would be liable.

Paragraph 9- If the watchman gave the ox to another watchman and it damaged, he would be liable, because a watchman that gave to another watchman is liable, even if it was an unpaid watchman who gave to a paid watchman. If the animal damaged, the first watchman would pay the victim and then litigate with the second watchman. If the first watchman gave it to his son or member of his household or his assistant, they would take the place of the watchman and would be liable.

Paragraph 10- If the borrower’s ox damaged the owner’s ox, or vice versa, the law is discussed in Siman 347.