Bava Kamma 46b (מו:) — the Talmud in English

From where is it derived that one does not address

the claim of Shimon, the defendant,

but

addresses

the

claim of the

claimant first

until his money is in his possession, and only afterward addresses Shimon’s claim?

As it is stated: “Whoever has a legal matter shall bring it before them.”

And we interpret the verse as follows: The one who has the matter—the claimant—is the one who

“shall bring his matter before them,”

but not the defendant, until they remove the maneh from Shimon, the defendant; only then may Shimon present his claims before the court, so that they will deliberate on his claims.

The sages of Nehardea said

[the sages of Nehardea]:

Sometimes one addresses the defendant first,

if the defendant will suffer a loss as a result of postponing the hearing of his counterclaim.

And what are the circumstances? Where his property is depreciating

because of this claim against the defendant: a rumor spreads about him that he is pressed to sell his property in order to pay his debt, and he will not find anyone to purchase it at its proper value.

Therefore, the borrower—the defendant—wishes the court to hear his claim and obligate the lender to return what he seized from the borrower. The borrower could then sell that object and pay his debt with the money he would receive for it.

We learned in the Mishna:

“And similarly, if a cow gored an ox,”

and its offspring was found beside it, but it is unknown whether she gave birth before she gored or after she gored, one collects half the damage from the cow and one-quarter of the damage from the offspring.

And we challenge this:

“Half the damage and one-quarter of the damage”

is what he receives!? The cow is not proven dangerous, and

half-damage

alone

is what he is required to pay

him. If so,

what is the purpose of full damage less one-quarter

[full damage minus one-quarter—that is, three-quarters of the damage]

—what is its function

that he should be obligated to pay so much!?

He said

[he explained]:

Abaye: “Half the damage”

from the cow, as stated, means half of the payment that he would have paid for the cow if the offspring had not participated in the goring. For if the cow had caused the damage without the offspring’s participation, he would have been obligated to pay half-damage; therefore, because of the offspring’s participation, he pays

one-quarter of the damage.

And one-quarter of the damage

from the offspring, as stated, means one-quarter of the payment that he would have paid for the offspring if it had gored without the cow’s participation, namely

one-eighth of the damage.

The reason is that, because of the cow’s participation, he need pay only one-quarter. Since we are uncertain whether the offspring participated in the goring, in which case it is obligated to pay one-quarter, or whether the cow gave birth to it before the goring, in which case the offspring bears no liability, it pays only one-eighth of the damage. For one-quarter of the damage is money subject to doubt, and according to Sumakhos, money subject to doubt is divided.

And we explain:

And if the cow and the offspring belong to one

man

they are,

[they belong to the same person],

can he also say to him

the owner of the injured ox

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

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

Rather, it is necessary

to state that one collects one-quarter of the damage from the offspring only 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 payment. Therefore, due to the uncertainty, he pays only one-eighth of the damage and not one-quarter.

And

we explain the matter:

If the injured party brought his claim first

against the owner of the cow,

then indeed he could

say

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

that is, the fact that the cow caused the damage is certain, but whether the offspring caused damage is uncertain. You cannot exempt yourself from paying the entire amount [half-damage] unless you bring proof that the offspring participated in the damage.

Rather

this is what we are dealing with:

where the injured party brought his claim first

against

the owner of the offspring,

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

he says to him:

By bringing your claim against the owner of the offspring,

you have revealed that you are aware that I have a partner.

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

Some say:

In every case, the owner of the cow pays no more than one-quarter of the damage,

and even though the injured party brought his claim first

against

the owner of the cow, he can

the owner of the cow

repel him

so that he cannot demand that he pay the entire amount.

Because

he says to him: “It is known

that I have a partner,”

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

He said

[he challenged]

Rava

about Abaye’s interpretation: Is it that

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

as Abaye said,

is what the Mishna states?

But

it states: “half the damage and one-quarter of the damage”!

Rather, he said

[he explained]:

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

.

And

that which it states: One collects half-damage from the cow and one-quarter of the damage from the offspring does not mean that he collects from both of them—half-damage from this one and one-quarter of the damage from that one.

Rather,

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

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

he collects half-damage from the cow,

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