Bava Kamma 46a (מו.) — the Talmud in English

But an entirely forewarned ox—we cannot find in it

in that same ox

any aspect of an innocuous ox

since the aspect of an innocuous ox does not remain in its place.

We learned in the Mishna:

Rabbi Eliezer says: It has no protection except the slaughter knife:

Rabba said: What is the reason for Rabbi Eliezer’s opinion?

It is because

the verse says

with regard to a forewarned ox: “

and he does not guard it,”

and this is what it is saying:

From now on, he has no protection for this ox;

that is, even if he guards it, he must pay if it causes damage.

Abaye

challenged

him

Rabba:

If that is so,

according to your interpretation of the verse, is it also the case

that it is written [Exodus 21:33]: “If a man opens a pit, or if 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 return money to its owner,”

also

should the interpretation of the verse be

that from now on he has no covering for this pit!

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

And if you would say, so too!

Indeed, that is the law: one who digs a pit, or even one who opens a pit,

from now on gains no benefit from covering it!? But was it not explicitly taught

that this is not so? For it was taught:

If he covered it—

the one who dug the pit or opened it—

the pit that he dug or opened

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

this demonstrates that the covering is effective.

Rather,

as a result of this objection,

Abaye said:

This is the reason for Rabbi Eliezer’s opinion,

that protection is ineffective with regard to a forewarned ox to exempt him from payment:

As it was taught in a beraita: Rabbi Natan says:

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

from where is it derived that

a person may not place

a

rickety ladder in his house,

since one who climbs it is in danger of falling—

as it is stated: “

Nor shall you place blood in your house.”

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

We have completed the chapter “An Ox That Gored Four or Five.”

Mishna:

An ox

that is innocuous

that gored a cow

that was pregnant

and her fetus was found

lying dead

beside her, and it is unknown

to us whether

before it gored

her

she gave birth

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

Or

if after

she

gored

her

she gave birth,

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 that case

he pays half the cost of the damage for the cow

[for the cow,] which he certainly damaged,

and

he likewise pays

one-quarter of the cost of the damage for the offspring,

since it is uncertain whether he is required to pay half the cost of the damage, as is the law with regard to an innocuous ox, or whether he is entirely exempt; and because of the uncertainty, they divide the money between them, and he pays one-quarter of the cost of the damage for the offspring.

And

just as when there is uncertainty as to how much damage he caused, he pays half of the money that is in doubt,

so

the same law applies when there is uncertainty as to who caused the damage,

With regard to an innocuous ox that caused damage, its owner does not pay from his own property; rather, the injured party receives half the cost of his damage from the body of the ox.

Therefore,

a cow

that was pregnant

that gored an ox, and her offspring was found

alive

beside her, and it is unknown

to us whether

before she gored

the ox, the cow

gave birth,

and it is established that the offspring did not participate in the goring, and payment for the damage caused by the ox is not collected from it.

Or

if after

she

gored

the ox

she gave birth,

and it is established 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 cost of the damage from the cow —

which certainly caused the damage,

and one-quarter of the cost of the damage from the offspring —

because of the uncertainty.

The plain meaning now is that the injured party receives one-quarter of the cost of the damage from the offspring, in addition to receiving half the cost of the damage from the cow; and in the Gemara we raise an objection to this and explain the Mishna.

Gemara:

Rav Yehuda said in the name of

[in the name of]

Shmuel: This

that we said in the first clause—that he pays, because of the uncertainty, one-quarter of the cost of the damage for the offspring—

is the statement of Sumkhos,

and

who says: money that is in doubt

[that is subject to uncertainty]

is divided

between the claimant and the defendant, half to this one and half to that one.

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

But the Sages say: This is a major principle in law: The one who seeks to collect from his fellow

[one who has a claim against his fellow and wishes to take money from him]

must

bear the obligation to bring

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 cost of the damage for the cow, but does not pay anything at all for the offspring, unless the injured party brings proof that she gave birth after she gored; then the owner of the ox will pay him half the cost of the damage for the offspring as well.

And we explain:

Why do I need

[according to the Sages]

to say: This is a major principle in law,

rather than suffice with saying: “The burden of proof rests upon the one who seeks to collect from his fellow”? Because

it was necessary

to include

even

if

the injured party says: It is certain

[I am certain] that you are liable,

and the one who caused the damage says: Perhaps

I am not liable, we do not say: when one says “certain” and the other says “perhaps,” the definite claim is superior, and money is collected on the basis of the claimant’s definite claim, but rather —

the burden of proof rests upon the one who seeks to collect from his fellow,

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

Alternatively,

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

for the matter that was stated: One who sells an ox to his fellow and it is found

that the ox is an ox

accustomed to goring

and unsuitable for plowing.

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

And 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, and this is 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

say to him

the buyer:

I sold it to you for slaughter,

and this is not a mistaken transaction. The reason the Sages said, “This is a major principle in law,” was to include Shmuel’s case, as the Gemara proceeds to explain.

And we challenge this:

Why

did Rav and Shmuel disagree in this matter?

Let us see whether

the buyer is

a person who buys for plowing

[a farmer who regularly purchases 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 purchases for slaughter], then he certainly bought it for slaughter, and there is no mistaken transaction. And we answer:

It is necessary

to establish the dispute only

with a person who buys for this purpose and for that purpose,

who is both a farmer and a butcher, and sometimes purchases an animal in order to slaughter it, and sometimes in order to plow with it. And we challenge this: The price of an ox fit for plowing is greater than the price of an ox fit only for slaughter; therefore, it should be possible to ascertain his intention from the amount of money he paid for the ox.

And let us see: If

[he] paid an amount equal to

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.