Bava Kamma Chapter Five Mishnah One

 

Introduction

In chapter three mishnah eight we learned an important principle with regards to monetary claims in Jewish law:  the burden of proof is on the plaintiff.  In order to recover money from the defendant the plaintiff must prove that he owes him money. In absence of such proof the defendant owes nothing. This is generally the position of the sages with regards to monetary claims.  However, there is another position that occasionally appears in the Mishnah.  According to this position in cases where there is doubt to whom the money belongs, the plaintiff and the defendant split the money.  Our mishnah goes according to this general rule and not the rule we learned previously that the burden of proof is on the defendant. 

This mishnah and the mishnah previously learned (3:8) are a good example how the Mishnah is not exactly a law book.  A law book should not have contradictions between different laws.  The Mishnah occasionally does contain such contradictions.  The Mishnah is therefore more properly described as a collection of laws and traditions from which a capable judge could make a decision. 

 

Mishnah

1)                     If an ox gored a cow [and it died] and its newly born young was found [dead] at its side, and it is not known if the cow gave birth before the ox gored, or if after the ox gored the cow gave birth,

a)                                           the owner of the ox pays half damages for the cow and one quarter damages for the newborn.

2)                     And also if a cow gored an ox and its newly born young was found at its side, and it is not known if the cow gave birth before she gored, or if after she gored before she gave birth,

a)                                           the owner pays half damages from the value of the cow and one quarter damages from value the newborn.

 

Explanation

Section one deals with an ox that is accounted harmless that gores and kills a cow.  When the cow is discovered it also has dead newborn by its side.  The owner of the ox certainly owes half damages for the cow, as is the law for damages done by animals that are tam, accounted harmless.  However, it is unclear whether he owes half damages for the newborn as well.  If the ox gored the cow before it gave birth, than the goring must have caused the cow to miscarry.  In this case the owner of the ox will owe half damages for the newborn as well.  However, there is a possibility that the cow miscarried before the goring. In this case the owner of the ox will not owe any damages for the newborn.  In other words, the owner of the cow claims that the ox caused the miscarriage and that the owner of the ox owes half damages. The owner of the ox claims that the cow miscarried before the goring and that he does not owe for the newborn.  In such a case the owner of the ox pays one quarter damages, half of the amount in dispute.

Section two deals with a similar case, except the roles are reversed.  This time the cow gores and kills the ox.  When the goring is discovered, the cow has a newborn next to it (this time the newborn is alive).  Since the cow was accounted harmless (tam) it will pay half damages that cannot exceed the worth of the cow.  Let us say that the gored ox was worth 500, half damages being 250.  The cow was worth 200 after it gave birth and 250 while it was pregnant.  If it gored while pregnant, the owner of the cow owes 250.  In this case he will give over both the cow and her newborn.  However, if it gored after giving birth the owner owes 200.  After giving birth the newborn is already a separate entity not responsible to pay for the goring.  The two owners are disputing whether or not the value of the newborn should be considered in paying the damages for the gored ox.  According to our mishnah the owner of the gored ox can collect up to half payment from the cow.  If he is still owed money, he can collect one quarter payment, or half of the half damages that he is owed, from the newborn.  In our example he would collect the full 200 from the cow and 25 from the newborn.

 

Questions for Further Thought:

·                      What would be the law if this mishnah were to go according to the principle that the burden of proof lies on the plaintiff?

 

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