If for goring at long intervals [during three days], there is [full] liability, how much more so for goring at short intervals.1 They,2 however, said to him: 'A zabah3 disproves your argument, as by noticing her discharges at long intervals [three cases of discharge in three days], she becomes [fully] unclean,4 whereas by noticing her discharges at short intervals [i.e. on the same day] she does not become [fully unclean].'5 But he answered them: Behold, Scripture says: And this shall be his uncleanness in his issue.6 Zab7 has thus been made dependent upon [the number of] cases of 'noticing', and zabah upon that of 'days'. But whence is it certain that 'And this'6 is to exempt zabah from being affected by cases of 'noticing'?8 Say perhaps that it meant only to exempt zab from being affected by the number of 'days'?9 — The verse says, And of him that hath on issue, of the man, and of the woman.10 Male is thus made analogous to female: just as female is affected by [the number of] 'days' so is man affected by 'days'.11 But why not make female analogous to male [and say]: just as male is affected by cases of 'noticing',8 so also let female be affected by cases of 'noticing'?8 — But Divine Law has [emphatically] excluded that by stating, 'And this'.12 On what ground, however, do you say [that the Scriptural phrase excludes the one and not the other]? — It only stands to reason that when cases of 'noticing' are dealt with,13 cases of 'noticing' are excluded;14 [for is it reasonable to maintain that] when cases of 'noticing' are dealt with,13 'days' should be excluded?15
Our Rabbis taught: What is Mu'ad? After the owner has been warned for three days;16 but [it may return to the state of] Tam, if children keep on touching it and no goring results; this is the dictum of R. Jose. R. Simeon says: Cattle become Mu'ad, after the owner has been warned three times,17 and the statement regarding three days refers only to the return to the state of Tam.
R. Nahman quoting Adda b. Ahabah said: 'The Halachah is in accordance with R. Judah regarding Mu'ad, for R. Jose agrees with him.18 But the Halachah is in accordance with R. Meir regarding Tam,19 since R. Jose agrees with him [on this point].' Raba, however, said to R. Nahman: 'Why, Sir, not say that the Halachah is in accordance with R. Meir regarding Mu'ad for R. Simeon agrees with him, and the Halachah is in accordance with R. Judah regarding Tam, since R. Simeon agrees with him [on this point]?' He answered him: 'I side with R. Jose, because the reasons of R. Jose are generally sound.'20
There arose the following question: Do the three days [under discussion] apply to [the goring of] the cattle [so that cases of goring on the same day do not count as more than one], or to the owner [who has to be warned on three different days]?21 The practical difference becomes evident when three sets of witnesses appear on the same day [and testify to three cases of goring that occurred previously on three different days]. If the three days apply to [the goring of] the cattle there would in this case be a declaration of Mu'ad;22 but, if the three days refer to the warning given the owner, there would in this case be no declaration of Mu'ad, as the owner may say: 'They have only just now testified against me [while the law requires this to be done on three different days].'
Come and hear: Cattle cannot be declared Mu'ad until warning is given the owner when he is in the presence of the Court of Justice. If warning is given in the presence of the Court while the owner is absent, or, on the other hand, in the presence of the owner, but outside the Court, no declaration of Mu'ad will be issued unless the warning be given before the Court and before the owner. In the case of two witnesses giving evidence of the first time [of goring], and another two of the second time, and again two of the third time [of goring], three independent testimonies have been established. They are, however, taken as one testimony regarding haza mah.23 Were the first set found zomemim,24 the remaining two sets would be unaffected; the defendant would, however, escape [full] liability25 and the zomemim would still not have to pay him [for conspiring to make his cattle Mu'ad].26 Were also the second set found zomemim, the remaining testimony would be unaffected; the defendant would escape [full] liability25 and the zomemim would still not have to compensate him [for conspiring to make his cattle Mu'ad].26 Were the third set also found zomemim, they would all have to share the liability [for conspiring to make the cattle Mu'ad];27 for it is with reference to such a case that it is stated, Then shall ye do unto him as he had thought to have done unto his brother.28 Now if it is suggested that the three days refer to [the goring of] the cattle [whereas the owner may be warned in one day], the ruling is perfectly right [as the three pairs may have given evidence in one day].29
Baba Kamma 24b
But if it be suggested that the three days refer to the warning given the owner,1 why should not the first set say: 'Could we have known that after three days there would appear other sets to render the cattle Mu'ad?'2 — R. Ashi thereupon said: I repeated this argument to R. Kahana, and he said to me: 'And even if the three days refer to [the goring of] the cattle,3 is the explanation satisfactory? Why should not the last set say: "How could we have known that all those present at the Court4 had come to give evidence against the [same] ox? Our aim in coming was only to make the defendant liable for half damages."?'5 — [But we may be dealing with a case where] all the sets were hinting to one another6 [thus definitely conspiring to act concurrently]. R. Ashi further said that we may deal with a case where all the sets appeared [in Court] simultaneously.7 Rabina even said: 'Where the witnesses know only the owner but could not identify the ox.'8 How then can they render it Mu'ad?9 — By saying: 'As you have in your herd an ox prone to goring, it should be your duty to control the whole of the herd.'
There arose the following question: In the case of a neighbour's dog having been set on a third person, what is the law? The inciter could undoubtedly not be made liable,10 but what about the owner of the dog? Are we to say that the owner is entitled to plead: 'What offence have I committed here?' Or may we retort: 'Since you were aware that your dog could easily be incited and do damage you ought not to have left it [unguarded]'?
R. Zera [thereto] said: Come and hear: [CATTLE BECOME AGAIN] TAM, WHEN CHILDREN KEEP ON TOUCHING THEM AND NO GORING RESULTS, implying that were goring to result therefrom there would be liability [though it were caused by incitement]! — Abaye however said: Is it stated: If goring results therefrom there is liability? What perhaps is meant is: If goring does result therefrom there will be no return to the state of Tam, though regarding that [particular] goring no liability will be incurred.
Come and hear: If he incited a dog or incited a serpent against him, there is exemption.11 Does this not mean that the inciter is free, but the owner of the dog is liable? — No, read: '… the inciter too is free.'12
Raba said: Assuming that in the case of inciting a neighbour's dog against a third person, the owner of the dog is liable, if the incited dog turns upon the inciter, the owner is free on the ground that where the plaintiff himself has acted wrongly, the defendant who follows suit and equally acts wrongly [against the former] could not be made liable [to him]. R. Papa thereupon said to Raba: A statement was made in the name of Resh Lakish agreeing with yours; for Resh Lakish said:13 'In the case of two cows on public ground, one lying and the other walking, if the walking cow kicks the other, there is no liability [as the plaintiff's cow had no right to be lying on the public ground], but if the lying cow kicks the other cow there will be liability.' Raba, however, said to him: In the case of the two cows I would always order payment14 as [on behalf of the plaintiff] we may argue against the defendant: 'Your cow may be entitled to tread upon my cow, she has however no right to kick her.'
MISHNAH WHAT IS MEANT BY 'OX DOING DAMAGE ON THE PLAINTIFF'S PREMISES'?15 IN CASE OF GORING, PUSHING, BITING, LYING DOWN OR KICKING, IF ON PUBLIC GROUND THE PAYMENT16 IS HALF, BUT IF ON THE PLAINTIFF'S PREMISES R. TARFON ORDERS PAYMENT IN FULL17 WHEREAS THE SAGES ORDER ONLY HALF DAMAGES.
R. TARFON THERE UPON SAID TO THEM: SEEING THAT, WHILE THE LAW WAS LENIENT TO TOOTH AND FOOT IN THE CASE OF PUBLIC GROUND ALLOWING TOTAL EXEMPTION,18 IT WAS NEVERTHELESS STRICT WITH THEM REGARDING [DAMAGE DONE ON] THE PLAINTIFF'S PREMISES WHERE IT IMPOSED PAYMENT IN FULL, IN THE CASE OF HORN, WHERE THE LAW WAS STRICT REGARDING [DAMAGE DONE ON] PUBLIC GROUND IMPOSING AT LEAST THE PAYMENT OF HALF DAMAGES, DOES IT NOT STAND TO REASON THAT WE SHOULD MAKE IT EQUALLY STRICT WITH REFERENCE TO THE PLAINTIFFS PREMISES SO AS TO REQUIRE COMPENSATION IN FULL? THEIR ANSWER WAS: IT IS QUITE SUFFICIENT THAT THE LAW IN RESPECT OF THE THING INFERRED19 SHOULD BE EQUIVALENT TO THAT FROM WHICH IT IS DERIVED:20 JUST AS FOR DAMAGE DONE ON PUBLIC GROUND THE COMPENSATION [IN THE CASE OF HORN] IS HALF, SO ALSO FOR DAMAGE DONE ON THE PLAINTIFF'S PREMISES THE COMPENSATION SHOULD NOT BE MORE THAN HALF. R. TARFON, HOWEVER, REJOINED: BUT NEITHER DO I
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