But in the case of an ox which was altogether Mu'ad no element of Tam could be found in it at all.
R. ELIEZER SAYS: NO PRECAUTION IS SUFFICIENT [FOR MU 'AD] SAVE [THE SLAUGHTER] KNIFE. Rabbah said: What was the reason of R. Eliezer? Because Scripture says: And his owner hath not kept him in,1 [meaning] that precaution would no more be of any avail for such a one. Said Abaye to him: If that is so, why not similarly say on the strength of the words, And not cover it2 that a cover would no more be of any avail for such a [pit]? And if you say that this is indeed the case, have we not learnt, 'Where it had been covered properly and an ox or an ass has [nevertheless] fallen into it there is exemption'?3 — Abaye therefore said: The reason of R. Eliezer was as taught [elsewhere]:4 R. Nathan says: Whence do we learn that a man should not bring up a vicious dog in his house, or keep a shaky ladder in his house? Because it is said: Thou bring not blood upon thy house.5
MISHNAH. IF AN OX HAS GORED A COW AND ITS [NEWLY-BORN] CALF IS FOUND [DEAD] NEAR BY, AND IT IS UNKNOWN WHETHER THE BIRTH OF THE CALF PRECEDED THE GORING6 OR FOLLOWED THE GORING,7 HALF DAMAGES8 WILL BE PAID FOR [THE INJURIES INFLICTED UPON] THE COW9 BUT [ONLY] QUARTER DAMAGES WILL BE PAID FOR [THE LOSS OF] THE CALF.10 SO ALSO WHERE A COW GORED AN OX AND A [LIVE] CALF WAS FOUND NEAR BY, SO THAT IT WAS UNKNOWN WHETHER THE BIRTH OF THE CALF PRECEDED THE GORING11 OR FOLLOWED THE GORING,12 HALF DAMAGES CAN BE RECOVERED OUT OF THE COW, AND QUARTER DAMAGES OUT OF THE CALF.13
GEMARA. Rab Judah on behalf of Samuel said: This ruling is the view of Symmachus who held that money, the ownership of which cannot be decided has to be shared [by the parties].14 The Sages, however, say that it is a fundamental principle in law that the onus probandi falls on the claimant. Why was it necessary to state 'this is a fundamental principle in law'? — It was necessary to imply that even where the plaintiff is positive and the defendant dubious14 it is still the plaintiff on whom falls onus probandi. Or [we may say] it is also necessary in view of a case of this kind: For it has been stated:15 If a man sells an ox to another and it is found to be a gorer, Rab maintained that the sale would be voidable,16 whereas Samuel said that the vendor could plead 'I sold it to be slaughtered'.17 How so? Why not see whether the vendee was a person buying for field work or whether he was a person buying to slaughter?18 — Samuel's view can hold good where he was a person buying both for the one and the other. But why not see if the money paid corresponded to the value of an ox for field work, then it must have been purchased for field work; if, on the other hand it corresponded to that of an ox to be slaughtered, then it must have been purchased for slaughter?19 — Samuel's view could still hold good where there was a rise in the price of meat so that the ox was worth the price paid for one for field work.
Baba Kamma 46b
I may here ask: If the vendor had not the wherewithal for making payment, why not take the ox in lieu of money?1 Do not people say, 'From the owner of your loan2 take payment even in bran'? — No, this is to be applied where he had the wherewithal for making payment.3 Rab who said that it was a voidable purchase maintained that we decide according to the majority of cases, and the majority of people buy for field work. Samuel, however, said that the vendor might plead against him, 'It was for slaughter that I sold it to thee,' and that we do not follow the majority,4 for we follow the majority only in ritual matters, but in pecuniary cases we do not follow the majority, but whoever has a [pecuniary] claim against his neighbour the onus probandi falls upon him.
It has been taught to the same effect: 'Where an ox gored a cow and its [newly-born] calf was found [dead] nearby, so that it was unknown whether the birth of the calf preceded the goring, or followed the goring, half damages will be paid for [injuries inflicted upon] the cow but only quarter damages will be paid for [the loss of] the calf; this is the view of Symmachus. The Sages, however, say: If one claims anything from his neighbour, the onus probandi falls upon him.
R. Samuel b. Nahmani stated: Whence can we learn that the onus probandy falls on the claimant? It is said: If any man have any matters to do, let him come unto them,5 [implying] 'let him bring evidence before them'. But R. Ashi demurred, saying: Do we need Scripture to tell us this?6 Is it not common sense that if a man has a pain he visits the healer? No: the purpose of the verse is to corroborate the statement made by R. Nahman on behalf of Rabbah b. Abbuha: Whence can we learn that judges should give prior consideration to the first plaintiff?7 It is said: If any man have any matters to do, let him come unto them5 [implying]: let him cause his matters to be brought [first] before them. The Nehardeans however, said; It may sometimes be necessary to give prior consideration to the defendant, as for instance in a case where his property would otherwise depreciate in value.8
SO ALSO WHERE A COW GORED AN OX etc. [We have here] half damages plus quarter damages! Is it not [only] half of the damage that need be paid for? What then have full damages less a quarter to do here? — Abaye said: Half of the damage means one quarter of the damage,9 and a quarter of the damage means one eighth of the damage.10 It is true that where the cow and the calf belong to one owner, the plaintiff would be entitled to plead against the owner of the cow, 'In any case, have you not to pay me half damages?'11 The ruling, however, applies to the case where the cow belonged to one and the calf to another.12 Again, where the plaintiff claimed from the owner of the cow first it would still also make no difference, as he would be entitled to argue against the owner of the cow, 'It was your cow that did me the damage, [and it is for you to] produce evidence that there is a joint defendant with you.'13 But where the rule applies is to a case where he claimed from the owner of the calf first, in which case the owner of the cow may say to him, 'You have made clear your opinion that there is a joint defendant with me.'14 Some, however, say that even where the plaintiff claimed from the owner of the cow first, the latter might put him off by saying, 'It is definitely known to me15 that there is a joint defendant with me.'14 Raba said: Is then 'a fourth of the damage' and 'an eighth of the damage' mentioned in the text? Is not 'half damages' and 'quarter damages' stated in the text?16 — Raba therefore said: We suppose that in fact the cow and the calf belonged to one owner,17 and the meaning is this: Where the cow is available,18 the payment of half damages will be made out of the cow.19
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