Bava Kamma 040

11:
We now come to the second scenario presented in our mishnah. In this scenario it is Sara's cow Athaliah who attacks David's ox Goliath. Please bear in mind that we are explaining the mishnah according to the reasoning of Symmachos, even though, as we have already indicated, the sages reject this reasoning.

12:
Our mishnah assumes that Athaliah enjoys the status of a 'docile' animal. That is to say, that she has never attacked anything, man or beast, before. We have learned that one of the differences between a 'docile' animal and a 'vicious' animal are that the owner of a 'docile' animal that attacks must pay half damages but the money for the payment must come from the sale of the animal itself; the owner of a 'vicious' animal pays full damages from the best of his or her property and the animal itself must be slaughtered.

13:
One further rule that we must now add for our understanding of the situation: if a pregnant animal attacks another the as yet unborn animal is considered to be party to the attack! We probably find this most unreasonable, but our sources are quite clear. When we studied Tractate Sanhedrin we discussed a situation in which a Bet Din must rule whether or not an animal must be killed. The Gemara [Sanhedrin 80a] states:

(The concept is echoed also in AZ 24a and Temurah 30b.)

So we see that an unborn calf is considered to be part of the mother and must share the mother's fate.

14:
In the case of our present mishnah these considerations yield the following possibilities:

• If Athaliah has not escaped after the attack (or has been retrieved after an escape) she must be sold and from the proceeds Sara must pay David half-damages.
• If Athaliah escaped after the attack and has not been retrieved David can only recoup his loss from the remaining calf. However, it cannot be ascertained whether the calf was born before or after the attack. If the calf was born after the attack it has no relevance to David's situation; but if Athaliah was still pregnant when she attacked Goliath then the calf was her 'accomplice' as it were, and David can claim damages from its sale. However, since the time of birth of the calf cannot be ascertained, according to Symmachos David and Sara must share the money, thus Sara must pay one quarter of David's losses from the monies received from the sale of the calf.

15:
However, as already pointed out more than once, the halakhah does not follow the ruling of this mishnah because the sages rejected the claim of Symmachos that when there is a doubt that cannot be resolved as to monetary responsibility the amount is to be divided between the plaintiff and the defendant. The sages uphold the principle that "the burden of proof lies with the claimant" and therefore David must prove that Sara's calf was born only after the attack. Rambam puts the matter most clearly in his commentary on our present mishnah:

Concerning what we have written in the last paragraph above (which repeats what we have already written in BK 038) Mike Lewyn writes:

So the Mishna says we split the difference between plaintiff and defendant, but the halacha overturns the Mishna. How does that square with the notion of an unchanging oral tradition?

I respond:

Whoever said that the oral tradition is unchanging? Surely, during all the years that we have been studying Mishnah in this study group it has become abundantly clear that the sages made changes, updated rulings, re-interpreted texts and so forth. All this is integral to the the methodology of the oral tradition.

I think that Mike may be thinking of something else. We often find a claim that the whole of the oral tradition was delivered to Moses at Sinai together with the Written Torah.

But all that this midrash is saying is that every part of the oral tradition that developed in later centuries was foreseen by Moses at Sinai. This midrash is contradicted by another famous midrash:

According to this midrash Moses was not able to follow the halakhic reasonings of Rabbi Akiva in his classroom. The students always sat in rows before the teacher, the most prominent students in the front and the least promising students at the back. Note that God sends Moses to the end of the eighteenth row!

The Virtual Bet Midrash is now going into its regular recess for the festival of Passover. I take this opportunity to wish us all a very happy and kasher Passover. The next shiur in this series will be, God willing, on 7th April.