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Bava Kama, 46

BAVA KAMA 46 - L'Iluy Nishmos Chaim Yissachar ben Yaakov [Smulewitz] and his wife, Esther Chaya Rayzel bas Gershon Eliezer, of Cleveland, Ohio. Sponsored by their children: Moish Smulevitz, Jeri Turkel, Marcia Weinblatt and families.


QUESTION: The Mishnah teaches that if an ox kills a pregnant cow and her fetus is found dead beside her, but we are unsure whether it died before the goring or as a result of the goring, the owner of the ox must pay half of the value of the dead cow (if the ox that gored was a Tam), and a quarter of the value of the dead fetus (because we are uncertain whether he was Chayav, and therefore they split the liability).

Rav Yehudah in the name of Shmuel teaches that this Mishnah follows the view of Sumchus, who says that when in doubt we split the liability. The Chachamim, though, hold "ha'Motzi me'Chaveiro Alav ha'Ra'ayah," which Shmuel calls "a major principle in monetary law," and thus the owner of the ox does not have to pay anything for the fetus.

The Gemara discusses why Shmuel needs to add that "this is a major principle." What is he trying to add by saying that it is a major principle? The Gemara offers two answers. Shmuel is teaching that the Chachamim rule "ha'Motzi me'Chaveiro Alav ha'Ra'ayah" even when the owner of the cow (the Nizak) claims with certainty that the ox killed his fetus, and the owner of the ox (the Mazik) is unsure. Even in such a case we apply the principle of "ha'Motzi me'Chaveiro" and he is exempt from paying for the fetus. Alternatively, Shmuel means to teach that we apply the rule of "ha'Motzi me'Chaveiro" even when the claimant has a Rov supporting his claim (because we do not follow Rov in monetary matters).

According to the second explanation, why does Shmuel find it necessary to emphasize that we do not follow a Rov with regard to the Machlokes between Sumchus and the Chachamim? Even Sumchus might agree to the fact that we do not follow the Rov when it comes to monetary matters (when the doubt regarding who owns the money arises only because of a person's claim, such as in the case of the Gemara in which a person sells an ox that is known to gore), but rather we rule "ha'Motzi me'Chaveiro Alav ha'Ra'ayah" (when the doubt arises only because of a person's claim), or we split the money (when Beis Din sees a clear reason to question who owns the money). The Halachah of not following a Rov is not pertinent to the teaching of Shmuel in our Sugya! (See SHO'EL U'MESHIV 4:3:84.)

ANSWER: The Gemara in Bava Basra (93b) explains that there actually is a Rov involved in the case of our Mishnah. Most animals give birth to live, healthy young and do not give birth to stillbirths. Therefore, if the fetus is found dead, the Rov should determine that it was the ox that killed it. The Gemara, therefore, poses our Mishnah as a question on Rav, who says that we follow a Rov. The Gemara answers that the Rov cannot prove that the ox killed the fetus when it gored the cow, since it is possible that the cow saw the ox coming and miscarried out of fright before the fetus was born (in which case the ox was only an indirect cause of the death of the fetus, and the owner of the ox does not have to compensate for the death of the fetus).

This might be what prompted Shmuel to comment on our Mishnah that, "Ein Holchin b'Mamon Achar ha'Rov," we do not follow Rov in monetary matters. Shmuel, who disagrees with Rav, maintains that the Rov that most animals give birth to live young *would* apply to the case of the Mishnah, and nevertheless the Mishnah teaches that we split the money. It is from this Mishnah that Shmuel might have inferred that "Ein Holchin b'Mamon Achar ha'Rov," just as the Gemara in Bava Basra suggests when it cites this Mishnah as support for Shmuel.

This might explain an unclear comment in RASHI (DH Iy Nami). Rashi writes that the *Mishnah* teaches us that we do not follow a Rov for monetary matters. To which Mishnah is Rashi referring? Our Mishnah does not seem to relate to the Halachah of Rov in monetary law, and Shmuel -- who said "this is a major principle" -- does not seem to be quoting any Mishnah or Beraisa!

(See RASHASH and MAHARSHAL who suggest that the Girsa in Rashi should be changed.) According to what we have explained, the Girsa in Rashi may indeed be correct. Rashi means that Shmuel inferred from *our* Mishnah that we do not follow a Rov for monetary matters, since in our Mishnah we do not determine the Halachah based on the Rov that most animals give birth to live young.

(Although this Rov is not a full-fledged Rov, as is evident from the Gemara's answer (in Bava Basra) according to Rav, we already explained (27b) that according to Tosfos and other Rishonim, Shmuel does rely on a full-fledged Rov to determine monetary law, and his statement was made only with regard to a weak Rov. Hence, Shmuel might maintain that the Rov that most animals give birth to live young is at least equal to the type of weak Rov to which he is referring in his statement.) (M. Kornfeld)


QUESTIONS: Rav and Shmuel argue whether we follow a Rov for monetary matters. The example given is a case where a person sells an ox to his friend and it turns out to be a Nagchan, a goring ox, and the buyer claims that he intended to buy the ox as a plowing ox in order to plow his fields. He claims that since it is a Nagchan, the ox is worthless for plowing, and thus the sale should be a Mekach Ta'us (a transaction made in err).

The Gemara asks that if the buyer is the type of person who always buys oxen for plowing (such as a farmer), then it should certainly be a Mekach Ta'us. If he is the type who normally buys oxen for slaughtering (such as a butcher), then the sale should be valid, since the fact that it is a Nagchan does not affect its quality for slaughtering. The Gemara answers that the person sometimes buys oxen for either purpose (for example, he works as both a farmer and as a butcher (RASHBAM, Bava Basra 92a)).

The Gemara concludes that, according to Rav, it is a Mekach Ta'us because we follow the Rov and most people buy cows for plowing, while according to Shmuel we do not follow the Rov.

There are a number of questionable points in this Sugya.

(a) The Gemara explains that the buyer is the type of person who sometimes buys an ox for slaughtering and sometimes for plowing. If we know that this is the nature of the specific person who purchased the animal, then how can Rav claim that "since most people purchase oxen for plowing" the cow that this person bought was most likely bought for plowing? What difference does it make what most people do if we know the nature of *this* person, and this person buys equally for either purpose? (RA'AVAD cited by RASHBA in Bava Basra 92a)

(b) Why, indeed, does the Gemara explain that the Rov which influenced Rav's ruling is that most *people* buy oxen for plowing? Why did the Gemara not explain that Rav is referring to a case where a particular *person* purchases mostly for plowing and sometimes for slaughtering, and Rav follows the Rav of what *this* person does most of the time! (The RASHASH in fact suggests that this is what the Gemara means. However, the word "Zavni," which means "they purchase," implies that the Gemara is referring to the oth er people in the world, and not to this person. The Rashash apparently changes the Girsa to "Zevan," referring to this person, and he also removes the word "d'Inshi" which refers to other people.)

(c) Why does the Gemara not answer that Rav and Shmuel argue in a case where the seller was not familiar with the buyer and did not know whether he normally purchases for plowing or for slaughtering? (ME'IRI; see RASHASH who suggests that this indeed is what the Gemara means.)

(a) The RASHBA answers that even if this person purchases oxen for both plowing and for slaughtering, since we are unsure what his intention was in *this* purchase, the fact that most people purchase for plowing can be used to determine what his intentions were. The ROSH (5:1) offers a similar explanation.

This explanation is difficult to understand. How can the fact that other people are farmers and buy oxen for plowing have any influence on the intention of this person, who is both a farmer and a butcher? (See AVNEI MILU'IM 45:7.)

The Rashba's intention might be that since this purchaser did not specify the purpose for which he was buying the ox, and he knew that most people buy oxen for plowing, he must have assumed that the seller will be selling him an ox for plowing since he knows that most people buy oxen for that purpose. Whenever a person does not specify his intentions and his intentions are in doubt, he expects the other party to assume that his intentions are like those of most other people. Therefore, it is as if he specified that he wants to buy the cow for plowing, according to Rav. According to Shmuel, a Rov is not taken into consideration in monetary matters, and therefore the buyer cannot expect the seller to take into account the Rov when selling him the ox. The buyer must specify his intentions explicitly.

This clearly seems to be the intention of the Rashbam in Bava Basra (92a, end of DH l'Shechitah, in his explanation of Shmuel's opinion).

(b) The Gemara could not explain that the buyer mostly buys oxen for plowing and only sometimes for slaughtering, because such a Rov would certainly have no validity. The Rov to which Shmuel refers is a Rov that is built into the nature of the world (it is actually more like a Chazakah than a Rov). For example, most people buy oxen for plowing because they get much more use out of it by using it for that purpose, and at any given time more oxen are being used for plowing than for slaughtering. Similarly, the fact that most animals give birth to live young, or that most people call a jug a "Kad" and a barrel a "Chavis," or that most women get married while they are Besulos (Bava Basra 92b), are all based on natural occurrences, logic, or universally accepted conduct. The fact that if a particular person is both a farmer and a butcher but he happens to use more animals for farming than he uses for slaughtering is not a Rov that is built into the nature of the world, or even into his nature; at any time he can decide that he is retiring as a farmer. Therefore, what he did in the past cannot determine what his intention is at this particular purchase. (M. Kornfeld)

(c) Why does the Gemara not explain that the seller did not know whether the buyer was a farmer or a butcher? The ME'IRI suggests two answers. First, he says that it is uncommon for the seller not to recognize the buyer.

Second, the Me'iri suggests that it would seem that, Halachically, as long as most people know what the buyer's occupation is or for what purpose he purchases oxen, even if the seller did not know the buyer's nature, we treat it as though he did know it (since he is expected to know what is common knowledge about the buyer).

QUESTION: Rav Shmuel bar Nachmani teaches that from the verse, "Whoever has a claim shall approach them" (Shemos 24:14), we learn the principle of "ha'Motzi me'Chaveiro Alav ha'Ra'ayah." Rav Ashi rejects this, asking why do we need a verse to teach this? Even without a verse we would rule in accorda nce with this principle, based on straightforward logic! The Gemara concludes that the verse is needed to teach an entirely different Halachah.

How can the Gemara suggest that a verse is not needed to teach the principle of "ha'Motzi me'Chaveiro Alav ha'Ra'ayah" because we can derive it through logic? We find that Sumchus argues with the Chachamim and rules that "Mamon ha'Mutal b'Safek Cholkin," and the money is divided between the two claimants. We do not find that Sumchus derives this from a verse! Apparently he is basing his ruling on logic. A verse, then, is indeed needed to teach that we do not follow the logic of Sumchus but rather the logic of the Chachamim, that "ha'Motzi me'Chaveiro Alav ha'Ra'ayah!" This is especially true in a case where the Nizak makes a definite claim ("Bari") and the Mazik makes an indefinite claim ("Shema"). The Gemara itself says that Shmuel considers this a novel Halachah, that even in such a case we apply "ha'Motzi me'Chaveiro Alav ha'Ra'ayah!" How, then, can Rav Ashi say it is logical and no verse is needed? (RA'AVAD, cited by Shitah Mekubetzes; MAHARAM)

(One might suggest that Rav Ashi was asking that a verse is not necessary to teach "ha'Motzi me'Chaveiro Alav ha'Ra'ayah" according to Sumchus, since, in a case when Beis Din has reason to doubt to whom the money belongs, the money indeed is split, and in a case where Beis Din has no reason to doubt aside for the claim of the claimant ("Derara d'Mamona;" see Bava Metzia 2b, Rashbam in Bava Basra 92a, DH l'Shechitah), indeed it is unquestionably logical that we rule "ha'Motzi me'Chaveiro Alav ha'Ra'ayah" (even according to Sumchus). However, the URIM V'TUMIM (CM 24:1) rejects this approach, because according to this approach Rav Ashi and the Gemara here are assuming the position of Sumchus, while we find that Tosfos (46a, DH ha'Motzi) and many Rishonim consider the opinion of the Chachamim who argue with Sumchus to be the Halachic opinion.)

Furthermore, why does the Gemara not explain that the verse is necessary according to Shmuel to teach that we rule "ha'Motzi me'Chaveiro Alav ha'Ra'ayah" even against a Rov? (MAHARAM)


(a) The RE'AH (cited by the Shitah Mekubetzes) and the MAHARAM answer that there is no implication in the verse to apply "ha'Motzi me'Chaveiro Alav ha'Ra'ayah" even in the case of "Derara d'Mamona" or the case of a Rov. That is why the Gemara asks that when there is no "Derara d'Mamona" and there is no Rov, it is obvious that the Halachah should be "ha'Motzi me'Chaveiro Alav ha'Ra'ayah."

(b) The RE'AH answers further that perhaps the Gemara considers it obvious that we do not rule like Sumchus. What this answer means, apparently, is that the Gemara knew that both the Chachamim and Sumchus base their rulings on logic, and not on verses. (The same can be said about Rav and Shmuel.)

Since we rule in accordance with the Chachamim, we are safe in saying that it is logical to apply "ha'Motzi me'Chaveiro Alav ha'Ra'ayah" even in a case of "Derara d'Mamona."

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