Mishnayos Bava Kamma Perek 5 Mishnah 1
ืืื ืงืื ืคืจืง ืืณ ืืฉื ื ืืณ
1
In the case of an innocuous ox that gored and killed a cow, and the cowโs fetus was found dead at its side, and it is not known whether the cow gave birth before the ox gored it and the fetusโs death is unrelated to the goring or whether it gave birth after the ox gored it and the fetus died on account of the goring, the owner of the ox pays half the cost of the damage for the cow and one-quarter of the cost of the damage for the offspring. Since it is uncertain whether the ox was responsible for the death of the fetus, in which case he would pay half the damages, its owner pays only half the amount for the fetus that he would ordinarily be required to pay, i.e., one-quarter. And likewise, there is uncertainty in the case of an innocuous cow that gored an ox, and the cowโs newborn offspring was found at its side dead or alive, and it is not known whether the cow gave birth before it gored the ox or whether the cow gave birth after it gored. When damage is caused by an innocuous animal, the liability of the owner is limited to the value of the animal that gored. Therefore, half the cost of the damage is paid from the value of the cow, as in the standard case of an innocuous animal. And if that does not suffice to pay for half the cost of the damage, one-quarter of the cost of the damage is paid from the offspring. Since it is uncertain whether the offspring was part of the cow at the time the cow gored, the owner pays only half of what he would pay if it were certain that it was part of the cow.
ืฉืืึนืจ ืฉืึถื ึผึธืึทื ืึถืช ืึทืคึผึธืจึธื ืึฐื ึดืึฐืฆึธื ืขึปืึผึธืจึธืึผ ืึผึฐืฆึดืึผึธืึผ, ืึฐืึตืื ืึธืืึผืขึท ืึดื ืขึทื ืฉืึถืึผึนื ื ึฐืึธืึธืึผ ืึธืึฐืึธื, ืึดื ืึดืฉึผืึถื ึผึฐืึธืึธืึผ ืึธืึฐืึธื, ืึฐืฉืึทืึผึตื ืึฒืฆึดื ื ึถืึถืง ืึทืคึผึธืจึธื ืึผืจึฐืึดืืขึท ื ึถืึถืง ืึทืึผึธืึธื. ืึฐืึตื ืคึผึธืจึธื ืฉืึถื ึผึธืึฐืึธื ืึถืช ืึทืฉึผืืึนืจ ืึฐื ึดืึฐืฆึธื ืึฐืึธืึธืึผ ืึผึฐืฆึดืึผึธืึผ, ืึฐืึตืื ืึธืืึผืขึท ืึดื ืขึทื ืฉืึถืึผึนื ื ึธืึฐืึธื ืึธืึฐืึธื, ืึดื ืึดืฉึผืึถื ึผึธืึฐืึธื ืึธืึฐืึธื, ืึฐืฉืึทืึผึตื ืึฒืฆึดื ื ึถืึถืง ืึดื ืึทืคึผึธืจึธื ืึผืจึฐืึดืืขึท ื ึถืึถืง ืึดื ืึทืึผึธืึธื:
ืืณ
ืืจืื ืืจื
ืฉืืจ ืฉื ืื ืืช ืืคืจื โ who was pregnant.
ืื ืืฆื ืขืืืจืช ืืฆืื โ that died.
ืืืื ืืืืข ืื ืขื ืฉืื ื ืื ืืืื โ and did not die because of the goring.
ืื ืืฉื ืืื โ and because of the goring aborted the fetus.
ืืจืืืข ื ืืง โ for an innocuous ox is liable for half damages and this offspring lies in doubt and we divide it. And our Mishnah is according to Sumachos who stated that money that is lies in doubt, we divide the money. But the Sages state that this is a great principle in law (see, for example, Tractate Bava Kamma, Chapter 3, Mishnah 11 above): โHe who seeks reparation from his fellow must produce evidence (i.e., upon him is the burden of proof).โ But the Halakha is according to the Sages. And even if the [owner of the] animal who suffered damages asserts a certainty (i.e., literally, โsureโ) and the [owner of the] animal who caused the damages says โperhapsโ (i.e., a possibility), โhe who seeks reparation form his fellow must produce evidence.โ
ืืื ืคืจื ืฉื ืืื ืืช ืืฉืืจ ืืื'- if the cow is found, it is according to the innocuous [animal whose owner] pays one-half damages from his estate, but if the cow is not found, he pays one-firth damages from the offspring, for if he had known that prior to [the cow] giving birth it had gored, he would pay all of the half-damages from the offspring, for she was pregnant and had gored and her fetus was gored, but if it was after she gave birth that she gored, he would not pay from the offspring anything, for the offspring did not gore. But the [owner of the] innocuous animal pays other than from his estate. But now that there is a doubt, they divide it and from the one-half damages that he has to pay, he pays one quarter damages from the offspring.
ืฉืืจ ืฉื ืื ืืช ืืคืจื. ืืขืืืจืช:
ืื ืืฆื ืขืืืจื ืืฆืื. ืืช:
ืืืื ืืืืข ืื ืขื ืฉืื ื ืืื ืืืื. ืืื ืืช ืืืืช ืื ืืืื:
ืื ืืฉื ืืื. ืืืืืช ืื ืืืื ืืคืืืชื:
ืืจืืืข ื ืืง ืืืื. ืืชื ืืืื ืืฆื ื ืืง, ืืืื ืืื ืืืื ืืกืคืง ืืื, ืืืืืงืื. ืืืชื ืืชืื ืกืืืืืก ืืื ืืืืจ ืืืื ืืืืื ืืกืคืง ืืืืงืื. ืืื ืืืืื ืืืืจืื ืื ืืื ืืืื ืืืื ืืืืฆืื ืืืืจื ืขืืื ืืจืืื. ืืืืื ืืืืืื. ืืืคืืื ื ืืืง ืืืืจ ืืจื ืืืืืง ืืืืจ ืฉืื, ืืืืฆืื ืืืืืจื ืขืืื ืืจืืื:
ืืื ืคืจื ืฉื ืืื ืืช ืืฉืืจ ืืืืณ ืืฉืื ืืฆื ื ืืง ืื ืืคืจื. ืื ื ืืฆืืช ืืคืจื ืืืื ืชื ืฉืืฉืื ืืฆื ื ืืง ืืืืคื. ืืื ืื ื ืืฆืืช ืืคืจื, ืืฉืื ืจืืืข ื ืืง ืื ืืืื. ืฉืื ืืื ืืืืข ืฉืงืืื ืฉืืืื ื ืืื ืืื ืืฉืื ืื ืืฆื ื ืืง ืื ืืืื, ืฉืืขืืืจืช ืฉื ืืื ืืื ืืขืืืจื ื ืืื. ืืื ืืืืจ ืฉืืืื ื ืืื ืื ืืื ืืฉืื ืื ืืืื ืืืื, ืฉืืจื ืืืื ืื ื ืื ืืืื ืืชื ืืฉืื ืืื ืืืืคื. ืขืืฉืื ืฉืืื ืืกืคืง, ืืืืงืื, ืืื ืืืฆื ื ืืง ืฉืืฉ ืื ืืฉืื ืืฉืื ืจืืืข ื ืืง ืื ืืืื: