Bava Kamma 46a — the Talmud in English

But it is entirely a muad; one cannot find in it

in that same ox itself

any aspect of tam at all,

for the aspect of tam does not remain in its place.

We learned in the Mishna:

Rabbi Eliezer says: It has no guarding except a knife:

Rabba said: What is the reason of Rabbi Eliezer?

Because

the verse says

with regard to a muad,

“and he shall not guard it,”

and this is what it is saying:

there is no longer any guarding for this one;

that is to say: even if he guards it, he pays if it causes damage.

He said

in astonishment

to him, Abaye,

to Rabba:

But if that is so,

according to your interpretation of the verse, is it indeed so

that it is written [Exodus 21:33]:

“When a man opens a pit, or when a man digs a pit

and does not cover it,

and an ox or a donkey falls into it. The owner of the pit shall pay; he shall restore money to its owner,”

also

it should be said that the interpretation of the verse is:

“There is no longer any covering for this one!”

And it teaches us that even if he covers the pit, he becomes liable to pay if an ox or a donkey falls into it!?

And if you would say: Indeed, so!

That is indeed the law, that the one who digs, or even the one who opens, a pit, covering it is no longer effective for him!?

But it was taught

explicitly that this is not so, for it was taught:

“He covered it”—

the one who dug or opened the pit—the pit that he dug or opened—

properly, and an ox or a donkey fell into it and died, he is exempt,

so it is evident that the covering is effective.

Rather,

because of this objection

Abaye said:

This is the reason of Rabbi Eliezer,

that guarding is not effective for a muad to exempt him from the payments:

As it was taught: Rabbi Natan says:

From where is it derived that a person may not raise a vicious dog within his house, and

from where is it derived that

he may not set up

a person

a rickety ladder within his house,

since one who climbs upon it is endangered by falling—

as it is stated:

“And you shall not place bloodguilt in your house.”

And also with regard to a muad ox—which is like a vicious dog—what the Torah said, “and he shall not guard it,” means: and he shall not keep it.

We have returned to you, chapter “An Ox That Gored Four and Five.”

Mishna:

An ox

that is innocuous

that gored a pregnant cow

and it was pregnant,

and her fetus was found

lying dead

beside her, and it is not known

to us whether

before it gored

her

she gave birth [the cow miscarried], and the owner of the ox is not liable to pay for the offspring.

the cow miscarried it, and the owner of the ox is not liable to pay for the offspring.

Or

whether after

the cow

was gored

by it,

she gave birth, and the owner of the ox is liable to pay also for the offspring, which died as a result of the ox’s goring.

and it is established that the owner of the ox is also liable to pay for the offspring, which died as a result of the goring by his ox.

In this case he

pays half the damage for the cow [the cow],

since it certainly damaged her,

and

he likewise pays

one-quarter of the damage for the offspring,

since it is uncertain whether he must pay half the damage, as is the law in the case of an innocuous ox, or whether he is entirely exempt. Because of the uncertainty, the parties divide the disputed money between them, and he pays one-quarter of the damage for the offspring.

And

just as when there is uncertainty about how much damage he caused, he pays half of the disputed amount,

so

the same law applies when there is uncertainty about who caused the damage:

When an innocuous ox causes damage, its owner does not pay from his other property. Rather, the injured party receives half the damage from the body of the ox itself.

Therefore,

a cow

that is pregnant

that gored an ox, and her offspring was found

alive beside her,

and it is not known

to us whether

before she gored

the ox

she gave birth,

in which case it turns out that the offspring did not participate in the goring, and payment for the ox’s damage is not collected from it.

Or

whether after

the cow

gored

the ox

she gave birth,

in which case it turns out that the offspring participated in the goring, and payment for the damage can also be collected from it.

The injured party

receives [payment from the one who caused the damage]

half the damage from the cow

—

since she certainly caused the damage,

and one-quarter of the damage from the offspring

—since this is uncertain.

It now follows that the injured party receives one-quarter of the damage from the offspring in addition to the half of the damage that he receives from the cow. The Gemara challenges this ruling and explains the Mishna.

Gemara:

Rav Yehuda said in the name of

[in the name of]

Shmuel: This

ruling that we stated in the first clause — that he pays one-quarter of the damage for the offspring because of the uncertainty —

is the statement of Sumakhos,

and

who says: Money that is subject to dispute [money about which there is uncertainty]

is divided

between them,

the claimant and the defendant, half for this one and half for that one.

Therefore, when we are uncertain whether the ox’s goring caused the offspring to be miscarried, in which case the owner of the ox must pay half the damage for the offspring, or whether the cow herself miscarried the offspring, in which case the owner of the ox is exempt from paying for it, Sumakhos obligates the owner of the ox to pay one-quarter of the offspring’s damage, and the owner of the offspring loses half.

But the Sages say: This is a great principle in law: The one who seeks to take money from another

[a person who has a claim against another and wants to take money from him]

must

bear the responsibility of bringing

proof

for his claim; and if he does not bring proof, he loses everything.

Therefore, according to the Sages, the owner of the ox pays half the damage for the cow, but pays nothing at all for the offspring until the injured party brings proof that the cow gave birth after she was gored. Then the owner of the ox will pay him half the damage for the offspring as well.

And we explain:

Why is it necessary

[for the Sages]

to say, “This is a great principle in law,”

rather than merely saying, “The one who seeks to take money from another must bring proof”? Because

it is necessary

to include

even

if

the injured party says: “I am certain

[It is clear] to me that you are liable,”

and the one who caused the damage says: “I am uncertain;

I am not liable.” We do not say that when one party is certain and the other is uncertain, the certain claim is stronger, and money is taken on the basis of the claimant’s certain claim, rather

the one who seeks to take money from another must bring proof,

and as long as the injured party does not prove his claim, the one who caused the damage is not liable to pay him.

Alternatively,

the statement that we say, “This is a great principle in law,” was necessary

for a case like the following: One who sells an ox to another, and it is found

that the ox is

an ox accustomed to goring

and is not fit for plowing with.

The buyer says: “I bought it for plowing. Therefore, my purchase was a mistaken transaction, and I want to return the ox and receive its money back from the seller.”

The seller says: “No. Rather, I sold it to you for slaughter. As far as slaughter is concerned, there is no defect in the fact that the ox is accustomed to goring. This is therefore a valid sale: the ox is yours, and the money you gave belongs to me.”

Rav said: This is a mistaken transaction,

and it is like one who bought wine and found vinegar.

And Shmuel said: The seller can

say

to him

the buyer:

“I sold it to you for slaughter,”

and this is not a mistaken transaction. The reason the Sages say, “This is a great principle in law,” is to include the case stated by Shmuel, as the Gemara now explains.

And we challenge this:

Why

do Rav and Shmuel disagree in this case?

Let us see whether

the buyer is

a person who buys for plowing

[a farmer who regularly buys animals for plowing]. If so, he certainly bought it for plowing, and if the seller gave him an ox accustomed to goring, this is a mistaken transaction.

Or

if

the buyer is

a person who buys for slaughter

[a butcher who buys animals for slaughter], then he certainly bought it for slaughter, and this is not a mistaken transaction. And we answer:

It is necessary

to establish the dispute only

with regard to a person who buys for both purposes,

who is both a farmer and a butcher and sometimes buys an animal in order to slaughter it, and sometimes in order to plow with it. The Gemara challenges this: The price of an ox fit for plowing is higher than the price of an ox fit only for slaughter. Therefore, it is possible to determine his intention from the amount of money he paid for the ox.

Let us see whether

[if] he paid the equivalent of

the price of

an ox fit for

plowing,

then we have proof that the ox was purchased

for plowing,

and it is a mistaken transaction.

And

if

according to the measure of

the money-value of

a bull destined for

slaughter

he paid, then we have proof that the bull was purchased

for slaughter,

and there is no mistaken transaction here. And in what do Rav and Shmuel disagree!?

And we answer:

It is not necessary

to distinguish except in a case where it is the season of slaughter,

for meat became expensive, and it stands at the price of a plowing bull [

the meat became expensive, and the price of a bull for slaughter is like the price of a bull for plowing].

They said [

the members of the academy raised an objection]: