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December 18, 2023 | 讜壮 讘讟讘转 转砖驻状讚

  • Masechet Bava Kamma is sponsored by the Futornick Family in loving memory of their fathers and grandfathers, Phillip Kaufman and David Futornick.

Bava Kamma 46

From where does Rabbi Eliezer derive his position that the only way to “protect” a shor muad from damaging others is to kill him? The Mishna in the beginning of the fifth chapter sets up two cases with a cow and her fetus – in the first case, the cow is gored by an ox (shor tam) and killed and the dead fetus is beside her also dead. However, it is unclear whether the death occurred before the goring or after and therefore unclear whether the owner of the ox owes damages for the fetus. In the second case, the cow gored and ox and is found with a newborn calf beside her and again it is unclear whether the calf was born before or after. If it was born after, the fetus is used to pay for damages as well. In both cases, the fetus is a case of doubt so a quarter damage is paid by/for the fetus instead of half. This is based on Sumchus’ position that when in doubt regarding money, both parties split the amount. The rabbis disagree and hold the burden of proof lies on the one who is requesting money from the other party (hamotzi mechavero alav hareaya). They say that this is an important principle. Why was it necessary to say that? The Gemara brings two possible situations to answer that question. One is that even if the one who was damaged makes a definitive claim (bari) and the other side is not making a definitive claim (shema), we still hold by the principle (that the burden of proof is on the one who was damaged). The second is that even though in general we follow the majority, in cases of monetary this, this principle overrides that. What is the source of this principle? In the second case of the Mishna, the owner pays half the value of the cow and a quarter of the value of the newborn calf. The Gemara asks, why does the owner of the ox get three-quarters of the damage in this case when they should only be getting half? In response, Abaye understands the Mishna differently – ‘half’ means a quarter, ‘a quarter’ means an eighth, which amounts to three-eighths, as there were two animals responsible so each only covers half the amount that they should have had to pay if they acted by themselves. They explain Abaye’s case only if the cow and its offspring had different owners. Rava rejects Abaye’s explanation as it doesn’t fit with the words of the Mishna and suggests an alternative explanation.

讗讘诇 诪讜注讚 诇讙诪专讬 诇讗 诪砖讻讞转 讘讬讛 爪讚 转诪讜转 讻诇诇


But if an ox is entirely rendered forewarned, you do not find an element of innocuousness with regard to it at all. If it is forewarned with regard to goring with either horn, its status of innocuousness is completely revoked.


专讘讬 讗诇讬注讝专 讗讜诪专 讗讬谉 诇讜 砖诪讬专讛 讗诇讗 住讻讬谉 (讻讜壮) 讗诪专 专讘讛 诪讗讬 讟注诪讗 讚专讘讬 讗诇讬注讝专 讚讗诪专 拽专讗 讜诇讗 讬砖诪专谞讜 砖讜讘 讗讬谉 诇讜 砖诪讬专讛 诇讝讛


搂 The mishna teaches that Rabbi Eliezer says: An ox has no sufficient safeguarding at all other than slaughtering it with a knife. Rabba said: What is the reason for the opinion of Rabbi Eliezer? It is as the verse states with regard to a forewarned ox: 鈥淎nd the owner has not secured it鈥 (Exodus 21:36), meaning that once it is rendered forewarned the owner no longer has any sufficient manner of safeguarding this animal, and the owner is responsible for all damage it causes.


讗诪专 诇讬讛 讗讘讬讬 讗诇讗 诪注转讛 讚讻转讬讘 讜诇讗 讬讻住谞讜 谞诪讬 砖讜讘 讗讬谉 诇讜 讻讬住讜讬 诇讝讛


Abaye said to Rabba: If that is so, does that which is written with regard to a pit: 鈥淎nd if a man shall open a pit, or if a man shall dig a pit and not cover it鈥 (Exodus 21:33), also mean that once a pit has been dug the owner no longer has any adequate way of covering this pit, which would exempt its owner from paying damages?


讜讻讬 转讬诪讗 讛讻讬 谞诪讬 讜讛转谞谉 讻住讛讜 讻专讗讜讬 讜谞驻诇 诇转讜讻讜 砖讜专 讗讜 讞诪讜专 讜诪转 驻讟讜专


And if you would say that indeed that is the halakha, but didn鈥檛 we learn in a mishna (52a) that if he covered the pit appropriately, and an ox or a donkey fell into it and died, he is exempt? Evidently, a pit can be covered adequately.


讗诇讗 讗诪专 讗讘讬讬 讛讬讬谞讜 讟注诪讬讛 讚专讘讬 讗诇讬注讝专 讻讚转谞讬讗 专讘讬 谞转谉 讗讜诪专 诪谞讬讬谉 砖诇讗 讬讙讚诇 讗讚诐 讻诇讘 专注 讘转讜讱 讘讬转讜 讜讗诇 讬注诪讬讚 住讜诇诐 专注讜注 讘转讜讱 讘讬转讜 砖谞讗诪专 讜诇讗 转砖讬诐 讚诪讬诐 讘讘讬转讱


Rather, Abaye rejected Rabba鈥檚 explanation of Rabbi Eliezer鈥檚 opinion, and said that this is the reason for the opinion of Rabbi Eliezer: As it is taught in a baraita that Rabbi Natan says: From where is it derived that one may not raise a vicious dog in his house, and that one may not set up an unstable ladder in his house? As it is stated: 鈥淵ou shall not bring blood into your house鈥 (Deuteronomy 22:8), which means that one may not allow a hazardous situation to remain in his house. Similarly, a person should not keep a forewarned ox in his possession, as it is dangerous. This is why Rabbi Eliezer rules that no level of safeguarding is sufficient for it; the ox should be slaughtered so that it will not cause damage.


讛讚专谉 注诇讱 砖讜专 砖谞讙讞 讗专讘注讛 讜讞诪砖讛



诪转谞讬壮 砖讜专 砖谞讙讞 讗转 讛驻专讛 讜谞诪爪讗 注讜讘专讛 讘爪讚讛 讜讗讬谉 讬讚讜注 讗诐 注讚 砖诇讗 谞讙讞讛 讬诇讚讛 讗诐 诪砖谞讙讞讛 讬诇讚讛 诪砖诇诐 讞爪讬 谞讝拽 诇驻专讛 讜专讘讬注 谞讝拽 诇讜诇讚


MISHNA: In the case of an innocuous ox that gored and killed a cow, and the cow鈥檚 fetus was found dead at its side, and it is not known whether the cow gave birth before the ox gored it and the fetus鈥檚 death is unrelated to the goring or whether it gave birth after the ox gored it and the fetus died on account of the goring, the owner of the ox pays half the cost of the damage for the cow and one-quarter of the cost of the damage for the offspring. Since it is uncertain whether the ox was responsible for the death of the fetus, in which case he would pay half the damages, its owner pays only half the amount for the fetus that he would ordinarily be required to pay, i.e., one-quarter.


讜讻谉 驻专讛 砖谞讙讞讛 讗转 讛砖讜专 讜谞诪爪讗 讜诇讚讛 讘爪讚讛 讜讗讬谉 讬讚讜注 讗诐 注讚 砖诇讗 谞讙讞讛 讬诇讚讛 讗诐 诪砖谞讙讞讛 讬诇讚讛 诪砖转诇诐 讞爪讬 谞讝拽 诪谉 讛驻专讛 讜专讘讬注 谞讝拽 诪谉 讛讜诇讚


And likewise, there is uncertainty in the case of an innocuous cow that gored an ox, and the cow鈥檚 newborn offspring was found at its side dead or alive, and it is not known whether the cow gave birth before it gored the ox or whether the cow gave birth after it gored. When damage is caused by an innocuous animal, the liability of the owner is limited to the value of the animal that gored. Therefore, half the cost of the damage is paid from the value of the cow, as in the standard case of an innocuous animal. And if that does not suffice to pay for half the cost of the damage, one-quarter of the cost of the damage is paid from the offspring. Since it is uncertain whether the offspring was part of the cow at the time the cow gored, the owner pays only half of what he would pay if it were certain that it was part of the cow.


讙诪壮 讗诪专 专讘 讬讛讜讚讛 讗诪专 砖诪讜讗诇 讝讜 讚讘专讬 住讜诪讻讜住 讚讗诪专 诪诪讜谉 讛诪讜讟诇 讘住驻拽 讞讜诇拽讬谉 讗讘诇 讞讻诪讬诐 讗讜诪专讬诐 讝讛 讻诇诇 讙讚讜诇 讘讚讬谉 讛诪讜爪讬讗 诪讞讘讬专讜 注诇讬讜 讛专讗讬讛


GEMARA: Rav Yehuda says that Shmuel says: This ruling in the mishna is the statement of Sumakhos, who says: Property of uncertain ownership is divided by the two parties. But the Rabbis say that this is the significant principle of monetary law: The burden of proof rests upon the claimant, and the disputed sum is not divided. According to the Rabbis, in the cases of uncertainty in the mishna, no payment is made for the fetus or from the offspring, respectively.


诇诪讛 诇讬 诇诪讬诪专 讝讛 讻诇诇 讙讚讜诇 讘讚讬谉 讗爪讟专讬讱 讚讗驻讬诇讜 谞讬讝拽 讗讜诪专 讘专讬 讜诪讝讬拽 讗讜诪专 砖诪讗 讛诪讜爪讬讗 诪讞讘讬专讜 注诇讬讜 讛专讗讬讛


The Gemara asks: Why do I need for the Rabbis to say the words: This is the significant principle of monetary law? Why not just state the principle? The Gemara answers: It was necessary to say them because even in a case where the injured party states: I am certain that such and such occurred, and the one liable for the damage says: Perhaps it was otherwise, without definitively refuting the claim against him, the burden of proof rests upon the claimant. Although the injured party claims with certainty that he is correct and the defendant鈥檚 claim is only speculative, the definite claim still does not render the defendant liable to pay, absent proof.


讗讬 谞诪讬 诇讻讬 讛讗 讚讗转诪专 讛诪讜讻专 砖讜专 诇讞讘讬专讜 讜谞诪爪讗 谞讙讞谉 专讘 讗诪专 讛专讬 讝讛 诪拽讞 讟注讜转 讜砖诪讜讗诇 讗诪专 讬讻讜诇 砖讬讗诪专 诇讜 诇砖讞讬讟讛 诪讻专转讬讜 诇讱


Alternatively, the phrase: This is the significant principle of monetary law, was necessary for instances such as this, as it was stated: In the case of one who sells an ox to another and the ox is found to be one that habitually gores, Rav says that this is considered to be a mistaken transaction, since the purchaser can claim that he bought the ox specifically for labor, and an ox that gores is not suitable for such tasks. And Shmuel says: The seller can say to him: I sold it to you for slaughter, and the fact that it gores is immaterial.


讗诪讗讬 讜谞讬讞讝讬 讗讬 讙讘专讗 讚讝讘讬谉 诇专讚讬讗 讗讬 讙讘专讗 讚讝讘讬谉 诇谞讻住转讗 诇讗 爪专讬讻讗 讘讙讘专讗 讚讝讘讬谉 诇讛讗 讜诇讛讗


The Gemara asks: Why are Rav and Shmuel speculating about the purpose of the sale? But let us simply see if the purchaser is a person who buys oxen for plowing or a person who buys oxen for slaughter. The Gemara answers: No, it is necessary for them to engage in a dispute in the case of a person who buys oxen for both this and for that reason, and in this instance it was unclear for which purpose it was intended.


讜谞讬讞讝讬 讗讬 讚诪讬 专讚讬讗 诇专讚讬讗 讗讬 讚诪讬 谞讻住转讗 诇谞讻住转讗


The Gemara asks: But let us see what the purchase price was: If he paid the price of an ox fit for plowing, which is a large amount of money, then it can be assumed it was intended for plowing. But if he paid the price of an ox for slaughtering, which is a much smaller amount, it can be assumed that it was sold for slaughtering.


诇讗 爪专讬讻讗 讚讗讜拽讬专 讘讬砖专讗 讜拽讗讬 讘讚诪讬 专讚讬讗


The Gemara answers: No, it is necessary for them to engage in a dispute in a case where the cost of meat rose and an ox purchased for slaughtering stands at the same price as an ox purchased for plowing. In that case, Rav and Shmuel dispute whether the purchaser can claim that the transaction was made in error, or whether the seller can claim that he sold it to be slaughtered and the purchaser must provide proof for his claim.


讗诪专讬


The Sages said:


讜讗讬 诇讬讻讗 诇讗砖转诇讜诪讬 诪讬谞讬讛 诇讬砖拽诇讬讛 诇转讜专讗 讘讝讜讝讬 讚讗诪专讬 讗谞砖讬 诪诪专讬 专砖讜讜转讱 驻讗专讬 讗驻专注


But if the loss to the purchaser cannot be reimbursed from the purchasing money by returning it, e.g., if the seller spent it already, let the purchaser take the ox itself in lieu of the money, as people say: Allow yourself to be repaid by your debtors even in bran, since anything may be used as payment for a debt. In the event that the seller has no money with which to reimburse the purchaser, even if it is a mistaken transaction the result may be that the purchaser keeps the ox in lieu of having his money returned. Accordingly, there would be no practical difference between the opinions of Rav and Shmuel.


诇讗 爪专讬讻讗 讚讗讬讻讗 诇讗砖转诇讜诪讬 诪讬谞讬讛


The Gemara answers: No, it is necessary for them to engage in a dispute in a case where the seller does have sufficient funds from which to repay the purchaser, and the purchaser demands that his money be returned as opposed to keeping the ox as payment.


专讘 讗诪专 讛专讬 讝讛 诪拽讞 讟注讜转 讝讬诇 讘转专 专讜讘讗 讜专讜讘讗 讚讗讬谞砖讬 诇专讚讬讗 讛讜讗 讚讝讘谞讬 讜砖诪讜讗诇 讗诪专 讬讻讜诇 砖讬讗诪专 诇讜 诇砖讞讬讟讛 诪讻专转讬讜 诇讱 讜诇讗 讗讝诇讬谞谉 讘转专 专讜讘讗 讻讬 讗讝诇讬谞谉 讘转专 专讜讘讗 讘讗讬住讜专讗 讗讘诇 讘诪诪讜谞讗 诇讗 讗讝诇讬谞谉 讘转专 专讜讘讗 讗诇讗 讛诪讜爪讬讗 诪讞讘讬专讜 注诇讬讜 讛专讗讬讛


The Gemara now explains the logic of Rav and Shmuel: Rav says that this is a case of a mistaken transaction, due to the principle: Follow the majority, and the majority of people buy oxen for plowing. And Shmuel says that the seller can say to him: I sold it to you for slaughtering, and we do not follow the majority in this case. When do we follow the majority according to Shmuel? Only in determining the prohibited or permitted status of an item. But in monetary matters such as this, we do not follow the majority. Rather, the operative principle is that the burden of proof rests upon the claimant.


转谞讬讗 谞诪讬 讛讻讬 砖讜专 砖谞讙讞 讗转 讛驻专讛 讜谞诪爪讗 注讜讘专讛 讘爪讚讛 讜讗讬谞讜 讬讜讚注 讗诐 注讚 砖诇讗 谞讙讞讛 讬诇讚讛 讗诐 诪砖谞讙讞讛 讬诇讚讛 诪砖诇诐 讞爪讬 谞讝拽 诇驻专讛 讜专讘讬注 谞讝拽 诇讜诇讚 讚讘专讬 住讜诪讻讜住 讜讞讻诪讬诐 讗讜诪专讬诐 讛诪讜爪讬讗 诪讞讘讬专讜 注诇讬讜 讛专讗讬讛


That which Rav Yehuda stated above, that the mishna follows the opinion of Sumakhos, is also taught in a baraita: In the case of an ox that gores a cow, and its fetus is found dead at its side, and he does not know whether it gave birth before the ox gored it or it gave birth after the ox gored it, the owner of the ox pays half the cost of the damage for the cow and one-quarter of the cost of the damage for the offspring; this is the statement of Sumakhos. The Rabbis say: The burden of proof rests upon the claimant.


讗诪专 专讘讬 砖诪讜讗诇 讘专 谞讞诪谞讬 诪谞讬讬谉 诇讛诪讜爪讬讗 诪讞讘讬专讜 注诇讬讜 讛专讗讬讛 砖谞讗诪专 诪讬 讘注诇 讚讘专讬诐 讬讙砖 讗诇讛诐 讬讙讬砖 专讗讬讛 讗诇讬讛诐


Rabbi Shmuel bar Na岣ani said: From where is it derived that the burden of proof rests upon the claimant? As it is stated in the Torah when Moses appointed Aaron and Hur to judge the people: 鈥淲hoever has a cause, let him come near [yiggash] to them鈥 (Exodus 24:14). This is interpreted to mean that whoever has a claim against another should submit [yaggish] proof to them. According to this interpretation, this verse demonstrates clearly that the claimant is responsible for supplying the proof.


诪转拽讬祝 诇讛 专讘 讗砖讬 讛讗 诇诪讛 诇讬 拽专讗 住讘专讗 讛讜讗 讚讻讗讬讘 诇讬讛 讻讗讬讘讗 讗讝讬诇 诇讘讬 讗住讬讗


Rav Ashi objects to this: Why do I need a verse to derive this? It is based on logical reasoning that one who suffers from pain goes to the doctor. Just as here the individual with the problem has the responsibility to resolve it, so too, someone with a claim against another must bring a proof to corroborate his claim.


讗诇讗 拽专讗 诇讻讚专讘 谞讞诪谉 讗诪专 专讘讛 讘专 讗讘讜讛 讚讗诪专 专讘 谞讞诪谉 讗诪专 专讘讛 讘专 讗讘讜讛 诪谞讬讬谉 砖讗讬谉 谞讝拽拽讬谉 讗诇讗 诇转讜讘注 转讞诇讛 砖谞讗诪专 诪讬 讘注诇 讚讘专讬诐 讬讙砖 讗诇讛诐 讬讙讬砖 讚讘专讬讜 讗诇讬讛诐


Rather, the verse is needed for that which Rav Na岣an says that Rabba bar Avuh says, as Rav Na岣an says that Rabba bar Avuh says: From where is it derived that a court first attends only to the arguments of the claimant and only afterward attends to the counterclaims of the defendant and discusses them? As it is stated: 鈥淲hoever has a cause, let him come near [yiggash] to them,鈥 which is interpreted to mean that whoever has a claim against another should submit [yaggish] his claim to them first before the defendant.


讗诪专讬 谞讛专讚注讬 驻注诪讬诐 砖谞讝拽拽讬谉 诇谞转讘注 转讞诇讛 讜讛讬讻讬 讚诪讬 讚拽讗 讝讬诇讬 谞讻住讬讛


The Sages of Neharde鈥檃 say that despite this principle, sometimes a court attends to the defendant first and listens to his defense before discussing the arguments of the claimant. What are the circumstances where this occurs? This occurs in a case where his assets are depreciating because of the claim against him. In that situation, the court allows him to present his arguments first so that he can sell his assets at their true price.


讜讻谉 驻专讛 砖谞讙讞讛 讗转 讛砖讜专 [讜讻讜壮] 讞爪讬 谞讝拽 讜专讘讬注 谞讝拽 驻诇讙讗 谞讝拽讗 讛讜讗 讚讘注讬 砖诇讜诪讬 讻讜诇讬 谞讝拽讗 谞讻讬 专讘注讗 诪讗讬 注讘讬讚转讬讛


搂 The mishna teaches: And likewise, in the case of a cow that gored an ox, and the cow鈥檚 newborn offspring was subsequently found at its side, half the cost of the damage is paid from the cow and one-quarter of the cost of the damage is paid from the offspring. The Gemara asks: The mishna鈥檚 wording indicates that the owner of the cow pays half the cost of the damage and an additional one-quarter of the cost of the damage, thereby amounting to three-quarters of the cost of the damage. This is difficult to understand, as he is required to pay only half the cost of the damage, since the ox is innocuous. If the mishna states that he pays three-quarters of the cost of the damage, what is its purpose?


讗诪专 讗讘讬讬 讞爪讬 谞讝拽 讗讞讚 诪讗专讘注讛 讘谞讝拽 讜专讘讬注 谞讝拽 讗讞讚 诪砖诪谞讛 讘谞讝拽


Abaye said: The phrase: Half the cost of the damage, actually means one-fourth of the cost of the damage. Since there are two animals that may have accomplices in the incident, the owner of the cow pays only half of the normal amount from the value of the cow, i.e., one-quarter of the cost of the damage. The other half of the payment, which is one-quarter of the cost of the damage, should be paid from the value of the newborn, who is the accomplice of the cow. Yet, due to the uncertainty of whether it was born before the goring or afterward, only half of that amount is paid from it, which is one-eighth of the cost of the damage. Therefore, the owner of the ox receives a total of three-eighths of the cost of the damage.


讜讗讬 驻专讛 讜讜诇讚 讚讞讚 谞讬谞讛讜 讛讻讬 谞诪讬 讚诪爪讬 讗诪专 诇讬讛 诇讘注诇 驻专讛 诪诪讛 谞驻砖讱 讞爪讬 谞讝拽 讛讘 诇讬 讗诇讗 诇讗 爪专讬讻讗 讚驻专讛 讚讞讚 讜讜诇讚 讚讞讚


The Gemara asks: But if the cow and the offspring are owned by one person, the injured party can indeed say to the owner of the cow: Whichever way you look at it, give me half the cost of the damage, either from the value of the cow or the newborn, which both belong to you. Why is it necessary to give half of the payment specifically from the cow and half from the newborn? Rather, this ruling of the mishna is not necessary except for the case where the cow belongs to one person and the offspring to another, and so each can claim that he is only partially responsible for the damage.


讜讗讬 讚拽讚讬诐 转讘注讬讛 诇讘注诇 驻专讛 转讞诇讛 讛讻讬 谞诪讬 讚讗诪专 诇讬讛 诇讘注诇 驻专讛 驻专讛 讚讬讚讱 讗讝讬拽转谉 讛讘 诇讬 专讗讬讛 讚讗讬转 诇讱 砖讜转驻讬


The Gemara asks: But even in this case, if the injured party came forward and claimed payment from the owner of the cow first, he can indeed say to the owner of the cow: Your cow certainly caused damage to my property, so bring me a proof that you have a partner. The owner of the cow would then have to prove that the newborn calf was still a fetus at the time and therefore a partner in the incident, in order to exempt himself from paying the entire payment of half the cost of the damage.


讗诇讗 讚拽讚讬诐 转讘注讬讛 诇讘注诇 讜诇讚 转讞诇讛 讚讗诪专 诇讬讛 讙诇讬转 讗讚注转讱 讚砖讜转驻讗 讗讬转 诇讬


Rather, the case of the mishna is one where he claimed payment from the owner of the offspring first, as in this case the owner of the cow can say to him: Since you claimed payment from the owner of the newborn, you thereby disclosed your opinion on the matter, that I have a partner who is responsible for part of the damage. Therefore, I am not prepared to pay the full amount required, i.e., half the cost of the damage, but only half of that amount, i.e., one-quarter.


讗讬讻讗 讚讗诪专讬 讗祝 注诇 讙讘 讚拽讚讬诐 转讘注讬讛 诇讘注诇 驻专讛 转讞诇讛 诪爪讬 诪讚讞讬 诇讬讛 讚讗诪专 诇讬讛 诪讬讚注 讬讚注讬 讗谞讗 讚砖讜转驻讗 讗讬转 诇讬


There are those who say: Even though the injured party came forward and claimed payment from the owner of the cow first, the latter can dismiss his claim, as he can say to him: I know that I have a partner in this matter, i.e., the owner of the newborn calf.


讗诪专 专讘讗 讗讟讜 讗讞讚 诪讗专讘注讛 讘谞讝拽 讜讗讞讚 诪砖诪谞讛 讘谞讝拽 拽转谞讬 讞爪讬 谞讝拽 讜专讘讬注 谞讝拽 拽转谞讬 讗诇讗 讗诪专 专讘讗 诇注讜诇诐 讘驻专讛 讜讜诇讚 讚讞讚 讜讛讻讬 拽讗诪专讬谞谉 讗讬转讛 诇驻专讛 诪砖转诇诐 讞爪讬 谞讝拽 诪驻专讛


Rava said, in challenging Abaye鈥檚 explanation: Is that to say that the mishna teaches: One-quarter of the cost of the damage and one-eighth of the cost of the damage? The mishna teaches half the cost of the damage and one-quarter of the cost of the damage. Rather, Rava said: Actually, the mishna is referring to a case where the cow and its offspring belong to one person, and this is what we are saying: The halakha is that with regard to damage caused by an innocuous animal, restitution is paid only from the money realized by selling the belligerent animal. Therefore, if the cow is here, half the cost of the damage is paid from the value of the cow itself;


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Bava Kamma 46

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Bava Kamma 46

讗讘诇 诪讜注讚 诇讙诪专讬 诇讗 诪砖讻讞转 讘讬讛 爪讚 转诪讜转 讻诇诇


But if an ox is entirely rendered forewarned, you do not find an element of innocuousness with regard to it at all. If it is forewarned with regard to goring with either horn, its status of innocuousness is completely revoked.


专讘讬 讗诇讬注讝专 讗讜诪专 讗讬谉 诇讜 砖诪讬专讛 讗诇讗 住讻讬谉 (讻讜壮) 讗诪专 专讘讛 诪讗讬 讟注诪讗 讚专讘讬 讗诇讬注讝专 讚讗诪专 拽专讗 讜诇讗 讬砖诪专谞讜 砖讜讘 讗讬谉 诇讜 砖诪讬专讛 诇讝讛


搂 The mishna teaches that Rabbi Eliezer says: An ox has no sufficient safeguarding at all other than slaughtering it with a knife. Rabba said: What is the reason for the opinion of Rabbi Eliezer? It is as the verse states with regard to a forewarned ox: 鈥淎nd the owner has not secured it鈥 (Exodus 21:36), meaning that once it is rendered forewarned the owner no longer has any sufficient manner of safeguarding this animal, and the owner is responsible for all damage it causes.


讗诪专 诇讬讛 讗讘讬讬 讗诇讗 诪注转讛 讚讻转讬讘 讜诇讗 讬讻住谞讜 谞诪讬 砖讜讘 讗讬谉 诇讜 讻讬住讜讬 诇讝讛


Abaye said to Rabba: If that is so, does that which is written with regard to a pit: 鈥淎nd if a man shall open a pit, or if a man shall dig a pit and not cover it鈥 (Exodus 21:33), also mean that once a pit has been dug the owner no longer has any adequate way of covering this pit, which would exempt its owner from paying damages?


讜讻讬 转讬诪讗 讛讻讬 谞诪讬 讜讛转谞谉 讻住讛讜 讻专讗讜讬 讜谞驻诇 诇转讜讻讜 砖讜专 讗讜 讞诪讜专 讜诪转 驻讟讜专


And if you would say that indeed that is the halakha, but didn鈥檛 we learn in a mishna (52a) that if he covered the pit appropriately, and an ox or a donkey fell into it and died, he is exempt? Evidently, a pit can be covered adequately.


讗诇讗 讗诪专 讗讘讬讬 讛讬讬谞讜 讟注诪讬讛 讚专讘讬 讗诇讬注讝专 讻讚转谞讬讗 专讘讬 谞转谉 讗讜诪专 诪谞讬讬谉 砖诇讗 讬讙讚诇 讗讚诐 讻诇讘 专注 讘转讜讱 讘讬转讜 讜讗诇 讬注诪讬讚 住讜诇诐 专注讜注 讘转讜讱 讘讬转讜 砖谞讗诪专 讜诇讗 转砖讬诐 讚诪讬诐 讘讘讬转讱


Rather, Abaye rejected Rabba鈥檚 explanation of Rabbi Eliezer鈥檚 opinion, and said that this is the reason for the opinion of Rabbi Eliezer: As it is taught in a baraita that Rabbi Natan says: From where is it derived that one may not raise a vicious dog in his house, and that one may not set up an unstable ladder in his house? As it is stated: 鈥淵ou shall not bring blood into your house鈥 (Deuteronomy 22:8), which means that one may not allow a hazardous situation to remain in his house. Similarly, a person should not keep a forewarned ox in his possession, as it is dangerous. This is why Rabbi Eliezer rules that no level of safeguarding is sufficient for it; the ox should be slaughtered so that it will not cause damage.


讛讚专谉 注诇讱 砖讜专 砖谞讙讞 讗专讘注讛 讜讞诪砖讛



诪转谞讬壮 砖讜专 砖谞讙讞 讗转 讛驻专讛 讜谞诪爪讗 注讜讘专讛 讘爪讚讛 讜讗讬谉 讬讚讜注 讗诐 注讚 砖诇讗 谞讙讞讛 讬诇讚讛 讗诐 诪砖谞讙讞讛 讬诇讚讛 诪砖诇诐 讞爪讬 谞讝拽 诇驻专讛 讜专讘讬注 谞讝拽 诇讜诇讚


MISHNA: In the case of an innocuous ox that gored and killed a cow, and the cow鈥檚 fetus was found dead at its side, and it is not known whether the cow gave birth before the ox gored it and the fetus鈥檚 death is unrelated to the goring or whether it gave birth after the ox gored it and the fetus died on account of the goring, the owner of the ox pays half the cost of the damage for the cow and one-quarter of the cost of the damage for the offspring. Since it is uncertain whether the ox was responsible for the death of the fetus, in which case he would pay half the damages, its owner pays only half the amount for the fetus that he would ordinarily be required to pay, i.e., one-quarter.


讜讻谉 驻专讛 砖谞讙讞讛 讗转 讛砖讜专 讜谞诪爪讗 讜诇讚讛 讘爪讚讛 讜讗讬谉 讬讚讜注 讗诐 注讚 砖诇讗 谞讙讞讛 讬诇讚讛 讗诐 诪砖谞讙讞讛 讬诇讚讛 诪砖转诇诐 讞爪讬 谞讝拽 诪谉 讛驻专讛 讜专讘讬注 谞讝拽 诪谉 讛讜诇讚


And likewise, there is uncertainty in the case of an innocuous cow that gored an ox, and the cow鈥檚 newborn offspring was found at its side dead or alive, and it is not known whether the cow gave birth before it gored the ox or whether the cow gave birth after it gored. When damage is caused by an innocuous animal, the liability of the owner is limited to the value of the animal that gored. Therefore, half the cost of the damage is paid from the value of the cow, as in the standard case of an innocuous animal. And if that does not suffice to pay for half the cost of the damage, one-quarter of the cost of the damage is paid from the offspring. Since it is uncertain whether the offspring was part of the cow at the time the cow gored, the owner pays only half of what he would pay if it were certain that it was part of the cow.


讙诪壮 讗诪专 专讘 讬讛讜讚讛 讗诪专 砖诪讜讗诇 讝讜 讚讘专讬 住讜诪讻讜住 讚讗诪专 诪诪讜谉 讛诪讜讟诇 讘住驻拽 讞讜诇拽讬谉 讗讘诇 讞讻诪讬诐 讗讜诪专讬诐 讝讛 讻诇诇 讙讚讜诇 讘讚讬谉 讛诪讜爪讬讗 诪讞讘讬专讜 注诇讬讜 讛专讗讬讛


GEMARA: Rav Yehuda says that Shmuel says: This ruling in the mishna is the statement of Sumakhos, who says: Property of uncertain ownership is divided by the two parties. But the Rabbis say that this is the significant principle of monetary law: The burden of proof rests upon the claimant, and the disputed sum is not divided. According to the Rabbis, in the cases of uncertainty in the mishna, no payment is made for the fetus or from the offspring, respectively.


诇诪讛 诇讬 诇诪讬诪专 讝讛 讻诇诇 讙讚讜诇 讘讚讬谉 讗爪讟专讬讱 讚讗驻讬诇讜 谞讬讝拽 讗讜诪专 讘专讬 讜诪讝讬拽 讗讜诪专 砖诪讗 讛诪讜爪讬讗 诪讞讘讬专讜 注诇讬讜 讛专讗讬讛


The Gemara asks: Why do I need for the Rabbis to say the words: This is the significant principle of monetary law? Why not just state the principle? The Gemara answers: It was necessary to say them because even in a case where the injured party states: I am certain that such and such occurred, and the one liable for the damage says: Perhaps it was otherwise, without definitively refuting the claim against him, the burden of proof rests upon the claimant. Although the injured party claims with certainty that he is correct and the defendant鈥檚 claim is only speculative, the definite claim still does not render the defendant liable to pay, absent proof.


讗讬 谞诪讬 诇讻讬 讛讗 讚讗转诪专 讛诪讜讻专 砖讜专 诇讞讘讬专讜 讜谞诪爪讗 谞讙讞谉 专讘 讗诪专 讛专讬 讝讛 诪拽讞 讟注讜转 讜砖诪讜讗诇 讗诪专 讬讻讜诇 砖讬讗诪专 诇讜 诇砖讞讬讟讛 诪讻专转讬讜 诇讱


Alternatively, the phrase: This is the significant principle of monetary law, was necessary for instances such as this, as it was stated: In the case of one who sells an ox to another and the ox is found to be one that habitually gores, Rav says that this is considered to be a mistaken transaction, since the purchaser can claim that he bought the ox specifically for labor, and an ox that gores is not suitable for such tasks. And Shmuel says: The seller can say to him: I sold it to you for slaughter, and the fact that it gores is immaterial.


讗诪讗讬 讜谞讬讞讝讬 讗讬 讙讘专讗 讚讝讘讬谉 诇专讚讬讗 讗讬 讙讘专讗 讚讝讘讬谉 诇谞讻住转讗 诇讗 爪专讬讻讗 讘讙讘专讗 讚讝讘讬谉 诇讛讗 讜诇讛讗


The Gemara asks: Why are Rav and Shmuel speculating about the purpose of the sale? But let us simply see if the purchaser is a person who buys oxen for plowing or a person who buys oxen for slaughter. The Gemara answers: No, it is necessary for them to engage in a dispute in the case of a person who buys oxen for both this and for that reason, and in this instance it was unclear for which purpose it was intended.


讜谞讬讞讝讬 讗讬 讚诪讬 专讚讬讗 诇专讚讬讗 讗讬 讚诪讬 谞讻住转讗 诇谞讻住转讗


The Gemara asks: But let us see what the purchase price was: If he paid the price of an ox fit for plowing, which is a large amount of money, then it can be assumed it was intended for plowing. But if he paid the price of an ox for slaughtering, which is a much smaller amount, it can be assumed that it was sold for slaughtering.


诇讗 爪专讬讻讗 讚讗讜拽讬专 讘讬砖专讗 讜拽讗讬 讘讚诪讬 专讚讬讗


The Gemara answers: No, it is necessary for them to engage in a dispute in a case where the cost of meat rose and an ox purchased for slaughtering stands at the same price as an ox purchased for plowing. In that case, Rav and Shmuel dispute whether the purchaser can claim that the transaction was made in error, or whether the seller can claim that he sold it to be slaughtered and the purchaser must provide proof for his claim.


讗诪专讬


The Sages said:


讜讗讬 诇讬讻讗 诇讗砖转诇讜诪讬 诪讬谞讬讛 诇讬砖拽诇讬讛 诇转讜专讗 讘讝讜讝讬 讚讗诪专讬 讗谞砖讬 诪诪专讬 专砖讜讜转讱 驻讗专讬 讗驻专注


But if the loss to the purchaser cannot be reimbursed from the purchasing money by returning it, e.g., if the seller spent it already, let the purchaser take the ox itself in lieu of the money, as people say: Allow yourself to be repaid by your debtors even in bran, since anything may be used as payment for a debt. In the event that the seller has no money with which to reimburse the purchaser, even if it is a mistaken transaction the result may be that the purchaser keeps the ox in lieu of having his money returned. Accordingly, there would be no practical difference between the opinions of Rav and Shmuel.


诇讗 爪专讬讻讗 讚讗讬讻讗 诇讗砖转诇讜诪讬 诪讬谞讬讛


The Gemara answers: No, it is necessary for them to engage in a dispute in a case where the seller does have sufficient funds from which to repay the purchaser, and the purchaser demands that his money be returned as opposed to keeping the ox as payment.


专讘 讗诪专 讛专讬 讝讛 诪拽讞 讟注讜转 讝讬诇 讘转专 专讜讘讗 讜专讜讘讗 讚讗讬谞砖讬 诇专讚讬讗 讛讜讗 讚讝讘谞讬 讜砖诪讜讗诇 讗诪专 讬讻讜诇 砖讬讗诪专 诇讜 诇砖讞讬讟讛 诪讻专转讬讜 诇讱 讜诇讗 讗讝诇讬谞谉 讘转专 专讜讘讗 讻讬 讗讝诇讬谞谉 讘转专 专讜讘讗 讘讗讬住讜专讗 讗讘诇 讘诪诪讜谞讗 诇讗 讗讝诇讬谞谉 讘转专 专讜讘讗 讗诇讗 讛诪讜爪讬讗 诪讞讘讬专讜 注诇讬讜 讛专讗讬讛


The Gemara now explains the logic of Rav and Shmuel: Rav says that this is a case of a mistaken transaction, due to the principle: Follow the majority, and the majority of people buy oxen for plowing. And Shmuel says that the seller can say to him: I sold it to you for slaughtering, and we do not follow the majority in this case. When do we follow the majority according to Shmuel? Only in determining the prohibited or permitted status of an item. But in monetary matters such as this, we do not follow the majority. Rather, the operative principle is that the burden of proof rests upon the claimant.


转谞讬讗 谞诪讬 讛讻讬 砖讜专 砖谞讙讞 讗转 讛驻专讛 讜谞诪爪讗 注讜讘专讛 讘爪讚讛 讜讗讬谞讜 讬讜讚注 讗诐 注讚 砖诇讗 谞讙讞讛 讬诇讚讛 讗诐 诪砖谞讙讞讛 讬诇讚讛 诪砖诇诐 讞爪讬 谞讝拽 诇驻专讛 讜专讘讬注 谞讝拽 诇讜诇讚 讚讘专讬 住讜诪讻讜住 讜讞讻诪讬诐 讗讜诪专讬诐 讛诪讜爪讬讗 诪讞讘讬专讜 注诇讬讜 讛专讗讬讛


That which Rav Yehuda stated above, that the mishna follows the opinion of Sumakhos, is also taught in a baraita: In the case of an ox that gores a cow, and its fetus is found dead at its side, and he does not know whether it gave birth before the ox gored it or it gave birth after the ox gored it, the owner of the ox pays half the cost of the damage for the cow and one-quarter of the cost of the damage for the offspring; this is the statement of Sumakhos. The Rabbis say: The burden of proof rests upon the claimant.


讗诪专 专讘讬 砖诪讜讗诇 讘专 谞讞诪谞讬 诪谞讬讬谉 诇讛诪讜爪讬讗 诪讞讘讬专讜 注诇讬讜 讛专讗讬讛 砖谞讗诪专 诪讬 讘注诇 讚讘专讬诐 讬讙砖 讗诇讛诐 讬讙讬砖 专讗讬讛 讗诇讬讛诐


Rabbi Shmuel bar Na岣ani said: From where is it derived that the burden of proof rests upon the claimant? As it is stated in the Torah when Moses appointed Aaron and Hur to judge the people: 鈥淲hoever has a cause, let him come near [yiggash] to them鈥 (Exodus 24:14). This is interpreted to mean that whoever has a claim against another should submit [yaggish] proof to them. According to this interpretation, this verse demonstrates clearly that the claimant is responsible for supplying the proof.


诪转拽讬祝 诇讛 专讘 讗砖讬 讛讗 诇诪讛 诇讬 拽专讗 住讘专讗 讛讜讗 讚讻讗讬讘 诇讬讛 讻讗讬讘讗 讗讝讬诇 诇讘讬 讗住讬讗


Rav Ashi objects to this: Why do I need a verse to derive this? It is based on logical reasoning that one who suffers from pain goes to the doctor. Just as here the individual with the problem has the responsibility to resolve it, so too, someone with a claim against another must bring a proof to corroborate his claim.


讗诇讗 拽专讗 诇讻讚专讘 谞讞诪谉 讗诪专 专讘讛 讘专 讗讘讜讛 讚讗诪专 专讘 谞讞诪谉 讗诪专 专讘讛 讘专 讗讘讜讛 诪谞讬讬谉 砖讗讬谉 谞讝拽拽讬谉 讗诇讗 诇转讜讘注 转讞诇讛 砖谞讗诪专 诪讬 讘注诇 讚讘专讬诐 讬讙砖 讗诇讛诐 讬讙讬砖 讚讘专讬讜 讗诇讬讛诐


Rather, the verse is needed for that which Rav Na岣an says that Rabba bar Avuh says, as Rav Na岣an says that Rabba bar Avuh says: From where is it derived that a court first attends only to the arguments of the claimant and only afterward attends to the counterclaims of the defendant and discusses them? As it is stated: 鈥淲hoever has a cause, let him come near [yiggash] to them,鈥 which is interpreted to mean that whoever has a claim against another should submit [yaggish] his claim to them first before the defendant.


讗诪专讬 谞讛专讚注讬 驻注诪讬诐 砖谞讝拽拽讬谉 诇谞转讘注 转讞诇讛 讜讛讬讻讬 讚诪讬 讚拽讗 讝讬诇讬 谞讻住讬讛


The Sages of Neharde鈥檃 say that despite this principle, sometimes a court attends to the defendant first and listens to his defense before discussing the arguments of the claimant. What are the circumstances where this occurs? This occurs in a case where his assets are depreciating because of the claim against him. In that situation, the court allows him to present his arguments first so that he can sell his assets at their true price.


讜讻谉 驻专讛 砖谞讙讞讛 讗转 讛砖讜专 [讜讻讜壮] 讞爪讬 谞讝拽 讜专讘讬注 谞讝拽 驻诇讙讗 谞讝拽讗 讛讜讗 讚讘注讬 砖诇讜诪讬 讻讜诇讬 谞讝拽讗 谞讻讬 专讘注讗 诪讗讬 注讘讬讚转讬讛


搂 The mishna teaches: And likewise, in the case of a cow that gored an ox, and the cow鈥檚 newborn offspring was subsequently found at its side, half the cost of the damage is paid from the cow and one-quarter of the cost of the damage is paid from the offspring. The Gemara asks: The mishna鈥檚 wording indicates that the owner of the cow pays half the cost of the damage and an additional one-quarter of the cost of the damage, thereby amounting to three-quarters of the cost of the damage. This is difficult to understand, as he is required to pay only half the cost of the damage, since the ox is innocuous. If the mishna states that he pays three-quarters of the cost of the damage, what is its purpose?


讗诪专 讗讘讬讬 讞爪讬 谞讝拽 讗讞讚 诪讗专讘注讛 讘谞讝拽 讜专讘讬注 谞讝拽 讗讞讚 诪砖诪谞讛 讘谞讝拽


Abaye said: The phrase: Half the cost of the damage, actually means one-fourth of the cost of the damage. Since there are two animals that may have accomplices in the incident, the owner of the cow pays only half of the normal amount from the value of the cow, i.e., one-quarter of the cost of the damage. The other half of the payment, which is one-quarter of the cost of the damage, should be paid from the value of the newborn, who is the accomplice of the cow. Yet, due to the uncertainty of whether it was born before the goring or afterward, only half of that amount is paid from it, which is one-eighth of the cost of the damage. Therefore, the owner of the ox receives a total of three-eighths of the cost of the damage.


讜讗讬 驻专讛 讜讜诇讚 讚讞讚 谞讬谞讛讜 讛讻讬 谞诪讬 讚诪爪讬 讗诪专 诇讬讛 诇讘注诇 驻专讛 诪诪讛 谞驻砖讱 讞爪讬 谞讝拽 讛讘 诇讬 讗诇讗 诇讗 爪专讬讻讗 讚驻专讛 讚讞讚 讜讜诇讚 讚讞讚


The Gemara asks: But if the cow and the offspring are owned by one person, the injured party can indeed say to the owner of the cow: Whichever way you look at it, give me half the cost of the damage, either from the value of the cow or the newborn, which both belong to you. Why is it necessary to give half of the payment specifically from the cow and half from the newborn? Rather, this ruling of the mishna is not necessary except for the case where the cow belongs to one person and the offspring to another, and so each can claim that he is only partially responsible for the damage.


讜讗讬 讚拽讚讬诐 转讘注讬讛 诇讘注诇 驻专讛 转讞诇讛 讛讻讬 谞诪讬 讚讗诪专 诇讬讛 诇讘注诇 驻专讛 驻专讛 讚讬讚讱 讗讝讬拽转谉 讛讘 诇讬 专讗讬讛 讚讗讬转 诇讱 砖讜转驻讬


The Gemara asks: But even in this case, if the injured party came forward and claimed payment from the owner of the cow first, he can indeed say to the owner of the cow: Your cow certainly caused damage to my property, so bring me a proof that you have a partner. The owner of the cow would then have to prove that the newborn calf was still a fetus at the time and therefore a partner in the incident, in order to exempt himself from paying the entire payment of half the cost of the damage.


讗诇讗 讚拽讚讬诐 转讘注讬讛 诇讘注诇 讜诇讚 转讞诇讛 讚讗诪专 诇讬讛 讙诇讬转 讗讚注转讱 讚砖讜转驻讗 讗讬转 诇讬


Rather, the case of the mishna is one where he claimed payment from the owner of the offspring first, as in this case the owner of the cow can say to him: Since you claimed payment from the owner of the newborn, you thereby disclosed your opinion on the matter, that I have a partner who is responsible for part of the damage. Therefore, I am not prepared to pay the full amount required, i.e., half the cost of the damage, but only half of that amount, i.e., one-quarter.


讗讬讻讗 讚讗诪专讬 讗祝 注诇 讙讘 讚拽讚讬诐 转讘注讬讛 诇讘注诇 驻专讛 转讞诇讛 诪爪讬 诪讚讞讬 诇讬讛 讚讗诪专 诇讬讛 诪讬讚注 讬讚注讬 讗谞讗 讚砖讜转驻讗 讗讬转 诇讬


There are those who say: Even though the injured party came forward and claimed payment from the owner of the cow first, the latter can dismiss his claim, as he can say to him: I know that I have a partner in this matter, i.e., the owner of the newborn calf.


讗诪专 专讘讗 讗讟讜 讗讞讚 诪讗专讘注讛 讘谞讝拽 讜讗讞讚 诪砖诪谞讛 讘谞讝拽 拽转谞讬 讞爪讬 谞讝拽 讜专讘讬注 谞讝拽 拽转谞讬 讗诇讗 讗诪专 专讘讗 诇注讜诇诐 讘驻专讛 讜讜诇讚 讚讞讚 讜讛讻讬 拽讗诪专讬谞谉 讗讬转讛 诇驻专讛 诪砖转诇诐 讞爪讬 谞讝拽 诪驻专讛


Rava said, in challenging Abaye鈥檚 explanation: Is that to say that the mishna teaches: One-quarter of the cost of the damage and one-eighth of the cost of the damage? The mishna teaches half the cost of the damage and one-quarter of the cost of the damage. Rather, Rava said: Actually, the mishna is referring to a case where the cow and its offspring belong to one person, and this is what we are saying: The halakha is that with regard to damage caused by an innocuous animal, restitution is paid only from the money realized by selling the belligerent animal. Therefore, if the cow is here, half the cost of the damage is paid from the value of the cow itself;


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