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Week 94 - Sunday - 9 September 2001

BAVA KAMMA: CHAPTER 5: MISHNAH 1

If an ox gored a cow and its newly born was found beside her, and it is not known 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 one-fourth damages for the young. And similarly, if a cow gored an ox, and its young were found next to her, and it is not known whether she gave birth before she gored or whether she gave birth after she gored, he pays half-damages from the cow and one-fourth damages from the young.

Kehati

Our mishnah continues to teach the laws of horn.

If an ox - a tam - gored a - pregnant - cow and its newly born was found beside her - dead, e.g., witnesses saw the goring from a distance and afterwards found the cow dead, and its young dead by its side (Hameiri), and it is not known whether she gave birth before it gored her - and the death of the newly born was not caused by the goring, with the owner of the ox not being liable for damages to the young - or whether she gave birth after it gored her - i.e. it aborted due to being gored, with the owner of the ox also being liable for damages to the young, he - the owner of the ox - pays - from the body of the ox - half-damages for the cow - according to the law of shor tam - and one-fourth damages for the young - since there is doubt as to whether the newly born also died as a result of the goring by the ox, and he is liable for half-damages to it, we therefore divide the half-damages of the young, and the owner of the ox pays only one-fourth of the damage to it. The Gemara explains that our mishnah is in accordance with Symmachus, who holds that money concerning which there is a doubt is divided. The Sages, however hold that "whoever would take from his fellow must bring the proof" is a major legal principle, i.e., according to the Sages, the owner of the ox pays nothing for the damage to the young, even if the injured party claims with certainty, that his cow aborted the fetus due to being gored by the ox, while the damager claims, perhaps (shema) it gave birth before my ox gored it; the owner of the ox is exempt from paying damages for the young, since whoever would take from his fellow must bring the proof. The law is in accordance with the Sages (see Rambam, Hil. Nizekei Mamon 9:2-3).

And similarly, if a cow gored an ox, and its young were found next to her - alive, and it is not known whether she gave birth before she gored - and was not carrying when she gored, with the half-damages being collected only from the body of the cow, but not from the body of the young, or whether she gave birth after she gored - and was carrying when she gored, with the half-damages being collected, from the cow and from the young, since the fetus is considered to be part of the cow’s body, both are considered to have gored and he pays half-damages from the cow and one-fourth damages from the young – the Gemara explains that if the cow is there, half-damages are collected from the body of the cow; if the cow is not there e.g., it was lost, one-fourth damages are collected from the body of the young. The reason for this is as we explained above: since there is doubt as to whether the fetus aided in the goring, and since money concerning which there is a doubt is divided, according to Symmachus, for the half-damages which must be paid, we collect only one-fourth damages from the body of the fetus. The same law applies when the cow is there, but its worth does not come to half the damage, we collect only half, and not the entire amount, of the remainder from the body of the young. According to the Sages, however we collect nothing from the young, since he who would take from his fellow must bring the proof. If it becomes clear, however, that the cow was carrying at the time of the goring, even if the cow is lost, we collect the entire half-damages from the young, since it and the cow are considered to be a single body.

The last part of our mishnah has been explained in accordance with Rav's interpretation in the Gemara (B. K. 46b), that this refers to a cow and young belonging to one person. Abbaye, however, interprets this as referring to a case in which the cow belongs, to one person and the young to someone else, with our mishnah teaching that since each one claims that he has a partner in the damages, the owner of the cow accordingly pays one half of what he has to pay, i.e., one fourth of the damage, and the owner of the young, who pays on the basis of a doubt, pays only one-fourth of what he has to pay. E.g., An ox worth 200 zuz was injured; half of the damage to it is 100 zuz; the owner of the cow pays 50 zuz, and the owner of the young pays 25 zuz; the injured party loses 25 zuz. Tosafot explains, however, that this calculation is only an example, as if the young caused half the damage, but in fact this is not so, since the cow and the fetus are not equal partners with regard to the damage. The intent of the mishnah, according to Abbaye, however, is that the owner of the young never pays more than one fourth the damage, e.g., if the cow, without the fetus, is worth 80 zuz, and 100 zuz with the fetus, and half of the damage which it caused comes to 100 zuz (e.g., it gored an ox worth 200 zuz), with the share of the fetus coming to one fifth the damage. If the fetus were definitely a partner, the injured party would take the cow together with the young. But there is a doubt here, and so he takes one half of the young, i.e., 10 zuz (Tosafot, caption Ureviya, B. K. 46b)

BAVA KAMMA: CHAPTER 5: MISHNAH 2

If a potter brought his pots into the courtyard of a householder without permission, and the animal of the householder broke them, he is exempt; and if it were injured by them, the owner of the pots is liable. And if he brought in with permission, the owner of the courtyard is liable. If he brought his produce into the courtyard of the householder without permission, and the animal of the householder ate it, he is exempt; and if it were injured by it, the owner of the produce is liable. And if he brought in with permission, the owner of the courtyard is liable.

Kehati

If a potter - brought his clay pots into the courtyard of a householder without permission, and the animal of the householder broke them, he - the householder - is exempt - from paying, since he says to the potter, Who gave you permission to enter and to bring your pots into my courtyard?

And if it - the animal of the householder - were injured by them, the owner of the pots is liable - to pay the damage incurred by the householder. And if he brought in with permission - if the potter received permission from the owner of the courtyard to bring his pots into the courtyard, the owner of the courtyard is liable - for the damage to the pots, if his animal broke them; since he gave the potter permission to bring his pots into the courtyard, he ordinarily undertakes to guard them against damage. This is also the law if his animal was injured by them: the owner of the pots is exempt, since the owner of the courtyard is responsible for ensuring that they would neither incur nor cause damage.

Similarly, if a person brought his produce into the courtyard of the householder without permission, and the animal of the householder ate it, he - the householder - is exempt - from paying; and if it were injured by it - e.g., if it slipped on the produce, the owner of the produce is liable - for the damage to the animal. If, however, the animal ate so much of the produce that it died, the owner of the produce is exempt, for it should not have eaten, and since it intentionally brought upon itself something which was injurious, the owner of the produce can not be obligated for this, because the householder being present in his courtyard should have prevented his animal from overeating (Gemara, Rabbeinu Asher). And if he brought in - his produce - with permission - of the owner of the courtyard, and his animal ate it, the owner of the courtyard is liable - for the reason which was given concerning the pots, above. In the following mishnah, however, Rabbi disagrees with this mishnah, and holds that even if he brought in with permission, the owner of the courtyard is not liable for the damage caused to the pots or the produce by his animal, unless he explicitly undertook to guard them. The law is in accordance with Rabbi.

Tosafot explains that our mishnah mentions the same law for both pots and produce to teach that the owner of the courtyard is liable, not only for pots which were brought in with permission, and which since they are easily broken the owner of the courtyard ordinarily undertakes to guard, but even for produce which was brought in with permission.

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