Babylonian Talmud

Rodkinson 1918 — source 10, scan section 37

tainty in the first part, and uncertainty and certainty in the other part is still one and the same case, but if both assert cer- tainty in one case and certainty and uncertainty in the other case, there are two different things, and if the Mishna should mean so it would state so plainly. '"Both are liable.'' Said Rabha, of Pharsika, to R. Ashi : Infer from this that if non-vicious oxen cause damage the plain- tiff may collect his damages from any one of them. Nay, the case in the Mishna is that both oxen were vicious. Said R. A'ha the elder to R. Ashi: If the case were that they were vicious, why is it stated that both are liable ? It ought to be * V/^'* (the man) is liable, meaning the owner (as the damage is paid from the best estates). We must, therefore, say that the case is that they were non-vicious, and it is according to R. Aqiba, who holds that they (the parties) are considered partners, and the reason here is that both oxen are on hand, in which case he cannot shift the responsibility upon the missing ox, but where one of them is missing the defendant may say to the plaintiff: Prove that this ox has done the injury, and I will pay you. 6 CHAPTER IV. RULES IN REGARD TO OXEN REPEATEDLY GORING OTHER OXEN AND HUMAN BEINGS. OXEN OF ORPHANS AND GUARDIANS AND WHAT IS CONSIDERED '^GUARDED." MISHNA /. : An ox that gores four or five oxen one after another, the last of them must be paid from the body of the goring ox (if he was yet considered non-vicious., e.g., when the goring was not in succession*), and from the balance of the half body the last but one must be paid, and if there was still a bal- ance left the last but two must be paid, so that the later the more privileged. Such is the dictum of R. Meir. R. Simeon, however, says that if an ox of the value of two hundred zuz gores an ox of the same value, and the carcass is worth nothing, each one takes one hundred ; if he again gores another of the value of two hundred, the last one takes one hundred zuz, and the former takes fifty, and fifty zuz remain for the owner of the goring ox; if he again gores a third one of the same value, the last one takes one hundred, the last but one takes fifty zuz, and the first as well as the owner takes each a golden dinar (twenty- five silver dinars). GEMARA: According to whom is our Mishna ? It is cer- tainly not according to R. Ishmael, who holds that the plaintiffs are considered creditors, for if it be so, then not the last, but the first would be more privileged, for he was prior to the last one in point of time. Neither can it be in accordance with R. Aqiba, who holds that in case of a non-vicious ox the plaintiff and the defendant are considered copartners, for then if there is a balance left from the body of the ox after the goring of the last one, the same would have to be divided equally among all the plaintiffs previous to the last one, and the decree of the Mishna is that the last but one must be paid, etc. Said Rabha: * Rashi explains this as follows : After the first goring he saw another ox and did not gore and after the second goring he saw two or three other oxen and did not gore them, and so after the third and fourth gorings in which case he is not considered vicious even in alternate order, as explained further on in the text. _ 82 TRACT BABA KAMA (THE FIRST GATE). 83 The Mishna can be explained In accordance with R. Ishmael, and the difficulty that it is stated that the later, the more priv- ileged, which ought to be the first (according to R. Ishmael), is to be explained thus: that the plaintiff levied upon the ox, and in such a case the plaintiff becomes responsible for the damage done by the ox while under his control, as he is then consid- ered a bailee for hire as regards damages (and so was the case with all others). But if such was the case, then why is it stated that if there is a balance left it goes to the last but one? It ought to go to the owner of the ox (for all the gorings subsequent to the first one were made while the ox was not under his con- trol). Said Rabhina: The statement in question means that if after the last one was paid from the body of the ox, there still remained a balance, the same must be paid over to the preceding one.* And so when Rabhin came from Palestine he said in the name of R. Johanan that the Mishna is to be explained in the same sense that Rabha did ; that is, that the Mishna treats only about the negligence of the plaintiffs who took the ox under their control and neglected to sufficiently guard him as was their duty to do. Now, when the Mishna is explained to be in accordance with R. Ishmael, how is it about the last part: " R. Simeon said, etc., . . . the first as well as the owner take each a golden dinar" ? This is certainly in accordance with R. Aqiba's opin- ion that the goring ox becomes the common property of a copartnership. Then the Mishna would be in accordance with * This is very complicated, and the commentaries differ as to the explanation and illustration thereof. Rashi maintains that if the value of the fifth one was only- fifty zuz, the carcass being of no value, he collects from the body of the goring ox his full half of twenty-five zuz, and turns over the balance to the fourth one, whose ox was of the value of one hundred zuz, who collects nevertheless only twenty-five zuz, for the reason that the twenty-five zuz collected by the fifth one are deducted from his half damage, because the ox was then under his control, and the balance is turned over to the third one, applying the same rule ; one full half value of the ox, however, belongs to the owner, as the ox was not under his control since the first goring.^ Hananel's illustration of this rule, however, is in reverse order : The first one whose ox was of the same value of the goring ox, who had to collect one hun- dred zuz out of the body of the goring ox, loses fifty if the goring ox gores another of the value of one hundred while under his control, and so the second pays to the third the one half of the damage done to him, so that only the last one takes his full half damage, as the ox was not under his control. Tosphath remarks that in such cases it can happen that the third and fourth should collect nothing, and even the fifth one may not be able to collect his full half. See the objection of Samuel Eidlis (Marsha) to these remarks of Tosphath and the answer of Sabbati Kohen in his com- mentary on the Schulchan Aruch, §401, and their illustrations. 84 THE BABYLONIAN TALMUD. two different opinions, viz., the first part according to R. Ish- mael and the last part in accordance with R. Aqiba. The Schoolmen said: Yea, so it is, for Samuel said to R. Jehudah