Bava Kamma 46b — the Talmud in English

And if

it is speaking of a person who has no money at all , and

it is impossible to collect from him

except the bull itself, then in what do Rav and Shmuel disagree? For even if you say that it is a “mistaken transaction,” and the seller is obligated to return the money to the buyer, since he has no money with which to pay,

let him take the bull in

place of

the money

that he owes him!?

For

this is what

people say: From your creditor [

from your creditor, to whom you are indebted, even

bran [

bran]

I will repay [

accept it from him as payment of your debt] , and if it is speaking of a case where it is impossible to collect from him, in what does Rav disagree with Shmuel!?

And we explain:

It is not necessary

to distinguish except in a situation

where

he has money, and

it is possible to collect from him.

Rav said: This is a mistaken transaction.

For Rav holds: even concerning monetary matters,

go after the majority [

we rule according to the majority],

and

behold,

the majority of people purchase for plowing [

the majority of people purchase bulls for plowing]. And if he sold him a goring bull, this is a mistaken transaction: the buyer returns the bull, and the seller is obligated to return the money to him.

And Shmuel said: He can say to him

this bull

I sold it to you for slaughter,

and although you intended it for plowing, nevertheless I did not deceive you, since you did not specify this matter at the time of the transaction, and you caused your own loss.

And we do not follow

here

the majority,

since

when

we follow the majority

that applies

in matters of prohibition; but in monetary matters we do not follow the majority. Rather, whoever seeks to extract from another bears the proof.

And the words of the Sages are explained according to the words of Shmuel, who says: even in a place where there is a majority, whoever seeks to extract from another bears the proof. Therefore the Sages said, “This is a great principle in judgment,” and so forth, and did not simply say, “Whoever seeks to extract from another bears the proof,” since they came to include even a place where there is a majority.

It was also taught so,

in accordance with the words of Rav Yehuda in the name of Shmuel: the Mishna is the view of Sumchos and not of the Sages:

A bull gored a cow, and her fetus was found beside her, and he does not know

whether she gave birth before it gored her, or whether she gave birth after it gored her; he pays half-damages for the cow and quarter-damages for the fetus—these are the words of Sumchos.

And the Sages say: Whoever seeks to extract from another bears the proof.

Rabbi Shmuel bar Naḥmani said: From where is it established that whoever extracts

from another

that

upon him

it is incumbent to bring

the proof? As it is stated [ [Exodus 24:14]: “And behold, Aaron and Hur are with you [to judge and adjudicate]:

[Шмот 24:14]: «И вот, Аарон и Хур с вами [чтобы судить и выносить решения],

whoever has a dispute, let him approach them.”

And we explain the verse in this way:

It is incumbent upon the claimant, who has a dispute, to prove his words; therefore he

shall bring proof to them [

to the judges].

Rav Ashi challenged it [

he raised this objection]

Rav Ashi: This

matter

why do I need

to derive it from

a verse,

for

it is logical!

Whoever

has pain goes to the physician’s house [

one who has a pain goes to the physician’s house so that he will heal him].

And just as the physician does not heal the sick person until he specifies to him the matter of his pains and knows his illness clearly, so the claimant must show the court that his claim is clear, namely, through witnesses.

Rather, the verse

“whoever has a dispute, let him approach them” is necessary

for that which Rav Naḥman said [

in the name of]

Rabbah bar Avuha: for Rav Naḥman said in the name of Rabbah bar Avuha:

Reuven claimed against Shimon: “I lent you one hundred dinars by a document,” and Shimon replied: “Indeed, I borrowed from you, and I did not repay you, but you have also seized an object of mine; return it to me, and I will pay you from it.”

From where is it [derived] that one does not attend

to the claim of Shimon, the defendant,

but

one attends

to the

claim of the

plaintiff first

until his money is in his possession, and afterward one attends to Shimon’s claim?

As it is stated: “Whoever has a dispute, let him bring his matter before them.”

And we interpret the verse in this manner: “the one with the dispute”—the plaintiff—is the one who

shall bring his matter before them,

and not the defendant, until they remove the maneh from Shimon, the defendant; and then Shimon can present his claims to the court, so that they will deliberate his words.

The sages of Nehardea said

the sages of Nehardea:

Sometimes one attends to the defendant first,

if the defendant will suffer a loss from delaying the hearing of his counterclaim.

And what are the circumstances? That his properties have depreciated

because of this claim brought against the defendant, so that a report goes out about him that he is compelled to sell his properties in order to pay his debt, and he will not find anyone who will purchase them at their value.

Therefore the borrower—the defendant—wishes that the court deliberate his claim and obligate the lender to return what he seized from the borrower; then the borrower will be able to sell that object and pay his debt from the money he receives for it.

We learned in the Mishna:

And likewise, a cow that gored an ox,

and its offspring was found beside it, and it is not known whether it gave birth before it gored or whether it gave birth after it gored: he collects half-damages from the cow and a quarter-damages from the offspring.

And we object:

Half-damages and quarter-damages

is he receiving!? But the cow is not forewarned, and

half-damages

alone

is what it is required to pay

him. If so,

what is the function of three-quarters of the damages

[full damages less one quarter—three-quarters of the damages]

what is its purpose

that is, what is the reason to obligate him to pay so much!?

Abaye said

[he explained]:

“Half-damages”

from the cow, as it teaches, means half of the payment that he would pay for the cow if the offspring had not participated in the goring. For if the cow had damaged without the participation of the offspring, he would have been obligated to pay half-damages; therefore, because of the participation of the offspring, he pays

one-quarter of the damages.

And quarter-damages

from the offspring, as it teaches, means a quarter of the payment that he would pay for the offspring if it had gored without the participation of the cow, namely

one-eighth of the damages.

And the reason for the matter is that because of the participation of the cow, he need pay only a quarter; and since we are uncertain whether the offspring participated in the goring and is obligated to pay a quarter, or whether the cow gave birth to it before the goring and the offspring bears no obligation at all, therefore he pays only one-eighth of the damages, for a quarter of the damages is money of uncertain ownership, and according to Sumakhos: money of uncertain ownership—they divide it.

And we interpret:

And if the cow and the offspring belong to one

man

they are,

[they belong to the same person]

is it likewise the case that he can say to him

the owner of the damaged ox

to the owner of the cow: “In any event, give me half-damages.”

That is, whether the offspring participated in the goring or whether it did not participate, you must pay me the measure of half-damages.

Rather, it is not necessary

to state quarter-damages from the offspring, except in a case such as

where the cow belongs to one person and the offspring belongs to another,

for the owner of the offspring can say: If the cow gave birth before it gored, I am exempt from paying. Therefore, because of the uncertainty, he pays only one-eighth of the damages and not a quarter.

And

we interpret the matter:

If the injured party brought his claim first

the injured party

to the owner of the cow, is it likewise the case that he

can

say to the owner of the cow: “Your cow damaged me; give me proof that you have a partner,”

that is, the fact that the cow caused damage is certain, but whether the offspring caused damage or not is uncertain, and you will not be able to exempt yourself from paying everything [half-damages] unless you bring proof that the offspring participated in the damage.

Rather,

what are the circumstances here?

That the injured party brought his claim first

the injured party

to the owner of the offspring,

and afterward the injured party can no longer say: “Give me proof that you have a partner,” because

he said to him:

By the fact that you brought your claim against the owner of the offspring,

you have revealed your mind that I have a partner.

Therefore, I pay you only a quarter-damages, and the owner of the offspring pays only one-eighth, because if it were certain that the offspring participated in the damage, it would have had to pay a quarter; now that we are uncertain, it pays only one-eighth.

Some say:

In every case, the owner of the cow does not pay more than a quarter-damages, and

even though the injured party brought his claim

the injured party

first to the owner of the cow, he can

the owner of the cow

repel him

so that he will not claim from him that he pay everything.

Because

he says to him: “It is known to me”

“that I have a partner,”

for the cow was pregnant, and the damage was caused in partnership with the offspring.

He said

[he objected]

Rava

against Abaye’s explanation: Is it so that

“one-quarter of the damages and one-eighth of the damages,”

as Abaye said,

is what it teaches?

But

it teaches: “half-damages and quarter-damages”!?

Rather, Rava said

[he explained]:

In fact, we are dealing with a cow and offspring belonging to one person

as the matter at hand.

And

that which it teaches: “He collects half-damages from the cow and quarter-damages from the offspring” does not mean that he collects from both of them, half-damages from this one and quarter-damages from that one.

Rather,

this is what we are saying: If the cow is present

[if the cow exists] and it is possible to collect from it,

he collects half-damages from the cow,

since even if the offspring participated in the damage, the injured party can say to the damager: “In any event, you are obligated to give me half-damages.”