Bava Kamma 039

6:
Let us now present our own version of the first scenario given by our mishnah:

David's ox, Goliath, is roaming in the field next to his owner's homestead. In that same field Sara's cow, Athaliah, is resting. For some reason, unknown to us and not important to the situation, Goliath gores Athaliah. Sara sees what is happening (and so do a couple of her friends who happened to be visiting). They rush to the scene and to their amazement they find a calf lying next to Athaliah. To make the situation easier to understand let us assume that the calf has been aborted before its time and Athaliah is terribly wounded, and probably won't survive for very long. David is sued in court and the court finds that Athaliah's injuries were the direct result of Goliath's attack on her; but the court is not able to establish whether Athaliah's calf was born before the attack (and possibly was the reason for the attack) or whether Athaliah aborted her calf before its time because she was attacked.

7:
Let's say that the court rules according to what is laid down in our mishnah. Goliath has never been known to act in this way before; therefore David must pay Sara half-damages for the injuries sustained by Athaliah, because Goliath has the legal status of 'docile' (tam). The court further rules that David must pay quarter-damages to Sara for the dead calf. (We recall that the damages are assessed by comparing Athaliah's value before the attack to her value now after the attack; the court must also compare the value to Sara of a live calf with its value to her now that it has been stillborn.)

8:
The reason why David is required by the court to pay quarter-damages for the calf is because it is not possible to ascertain whether or not the calf's death had anything to do with Goliath. So this is a case where "there is a doubt that cannot be resolved as to monetary responsibility". The sages in the Gemara [BK 46a] tell us that in such a case Symmachos ruled that the sum in dispute should be divided equally between the plaintiff and the defendant. Thus David pays quarter-damages, half of what he would otherwise have owed Sara.

9:
Symmachos is a Tanna – one of the sages from the era before the publication of the Mishnah – who was a student of Rabbi Me'ir. It can be assumed here that his opinion that "money that is in doubt must be divided" is that of his teacher, Rabbi Me'ir. Our mishnah brings this view 'anonymously': that is to say that it does not attribute the ruling to any sage in particular. Now, the sages of the Gemara give us important information about the authorship of many mishnahs and so forth:

(The Sifra is an halakhic midrash on the book of Leviticus and the Sifré is an halakhic midrash on the books of Numbers and Deuteronomy.)

10:
But if our imaginary court had ruled as laid down in our mishnah (following the chain Symmachos – Me'ir – Akiva) the rest of the sages would have quashed it on appeal because the ruling goes directly against an halakhic principle which we learned in BK 026:

In other words, Sara must prove to the court that the calf's birth and death were a direct result of the attack by Goliath.

To be continued.

In BK036 I wrote: Our mishnah rules that if the owner of an ox transfers his ox into the keeping of one of the bailees that bailee has now accepted full responsibility for the animal, in place of the owner.

Ed Frankel writes:

Regarding the bailee, voluntary or not, the question that I think needs to be asked is if the bailee is aware of the nature of the animal he took in. If knowledgeable, clearly he would be fully responsible. However, if the wool was pulled over his eyes, is this not a fraudulent deception taken on by the owner in order to have another pay his fines? I have trouble believing that this would be either considered ethical or legal. If there is any money involved in the transaction, I also wonder if some ona-ah might be involved as well.

I respond:

Of course we must assume that the bailee is aware of what he or she is doing. If the bailee discovers that the owner of the animal (in this case) has taken advantage of him then he would legitimately be able to claim "mekach ta'ut" – which can roughly be rendered "had I known I would never have accepted responsibility."

• Had I known that the book was stolen I would never have borrowed it.
• Had I known that it had a faulty rudder I would never have hired the boat.
• Had I known that she would be gone so long I would never have agreed to look after Leah's shopping basket.

And so forth. However, in such cases the other side usually has a counter argument.

In BK038 in my response to the questions posed by Avraham Hasson I quoted the story of Zimri's accusations against Moses. Naomi Graetz writes:

What is the source of this midrash that you refer to?

I respond:

Babylonian Talmud, Tractate Sanhedrin 82a.

Naomi also adds:

What I find amazing about it, is that it sounds similar to midrashim on Vatedaber Miriam ve-Aharon…. when the siblings complain about Moshe and the Cushite woman.