Babylonian Talmud: Tractate Baba Bathra

Folio 93a

is not [the sale valid] because most [slaves] are [of] such [a character]? [And does not this prove that even in monetary matters,¹  one is to be guided by the majority rule?]²  — No; all of them are such.³

Come and hear! [We learnt]:⁴  [If] an ox gored a cow, and its embryo was found [dead] at its side, and it is not known whether it gave birth before it was gored⁵  or after it was gored,⁶  [the owner of the ox] pays half [the cost of the] damage [in respect] of the cow,⁷  and a quarter [in respect] of the young.⁸  [Now. if, in monetary matters, one is guided, as Rab asserted, by the majority rule,] why [does the owner of the ox only pay a quarter of the loss]? Let it be said, 'Be guided [by what] most cows [do]', and most cows conceive and give birth [to live calves] and the miscarriage must, [consequently], have been due to the goring!⁹  — There, [the majority rule is inapplicable] because there is the uncertainty whether the [ox] approached from the front,¹⁰  and the miscarriage was due to shock;¹¹  or from behind, and the miscarriage was due to goring;¹²  [the indemnity] is, [therefore like] money of doubtful ownership, and all money the ownership of which is in doubt must be divided [between the parties concerned].

Must it be said [that they¹³  differ on the same principles] as the [following] Tannaim? [It has been taught:] [If] an ox was grazing and a dead ox was found at its side, it must not be said, although the one is gored and the other is wont to gore, one bitten and the other wont to bite, 'It is obvious that the one gored or bit the other'. R. Aha said: [In the case of] a camel which 'covers'¹⁴  among [other] camels, and a dead camel was found at its side, it is obvious that the one killed the other. Now, assuming that [the principles] of majority¹⁵  and of confirmed legal status¹⁶  have the same force, must it be said that Rab¹⁷  is of the same opinion as R. Aha¹⁸  and Samuel¹⁹  is of the same opinion as the first Tanna?²⁰  — Rab can tell you: What I have said [is valid] even according to the first Tanna. For the first Tanna made his statement, there, [that the killing is not to be attributed to the butting ox], only because one is not to be guided by the principle of legal status, but one is to be guided by that of majority.²¹  And Samuel can say: What I have said [is valid] even according to R. Aha. For R. Aha made his statement there, [that the 'covering' camel is assumed to be the killer], only because one must be guided by the principle of legal status, since it is the [camel] itself that has been confirmed in that status, [and is standing near by], but one Is not to be guided by the majority principle.²²

Come and hear! [IF] ANYONE HAS SOLD FRUIT TO ANOTHER … AND [THE BUYER] SOWED THEM AND THEY DID NOT GROW, EVEN [IF THEY WERE] LINSEED, HE IS NOT RESPONSIBLE. Does not 'EVEN' imply. 'even linseed most of which is bought for sowing purposes'? And [does not this show that] even in such a case one is not guided by the majority principle!²³  This²⁴  is [a subject of dispute between] Tannaim. For it has been taught: [In the case when] one has sold fruit to another and [the buyer] sowed them and they did not grow, [if they are] garden seeds which are not eaten, he is responsible;²⁵  [if they are] linseed, he is not responsible.²⁶  R. Jose said:

1. Such e.g.. as the purchase of slaves.
2. How, then, could Samuel say that the majority rule is applicable to ritual matters only?
3. Therefore the sale is valid as if the seller had explicitly stated that the slave was a thief or a gambler.
4. B.K. 46a.
5. In which case the owner of the ox is free from all liability.
6. And, consequently, death was caused by the goring, and the owner of the ox is responsible.
7. The owner of a butting ox, before due warning has been given him (cf. Ex. XXI, 28-36). makes good only half the damage.
8. In respect of half the cost of the damage to the embryo it is not certain that he is liable, since it is not known whether or not the goring was the cause of the death. Hence the loss is shared by the two parties, the owner of the ox refunding a half of the half, i.e., a quarter of the full loss.
9. And the owner of the ox should, therefore, have had to refund half the loss. But since the law is not so, how can Rab assert that in monetary matters the majority rule is followed?
10. Frightening the cow by its approach and causing miscarriage. For loss caused by fright no liability is incurred (cf. B.K. 56a).
11. Not to the goring.
12. And since one of these contingencies is as likely as the other, the majority rule, though applied to other monetary cases, cannot be applied here.
13. Rab and Samuel.
14. A euphemism. Lit., 'to be behind'. At the time of mating it is ferocious, and is likely to attack other males with fatal results.
15. Most animals do not gore. therefore every animal must be regarded as innocuous until the contrary has been proved.
16. The ox referred to was wont to gore', therefore, legally, a confirmed butter.
17. Who accepts the majority principle.
18. Who attributes the killing to the 'covering' camel because of its legal status (legally regarded as ferocious and likely to kill).
19. Who disregards the majority principle in monetary matters.
20. Who does not attribute the killing to the animal though its legal status is that of a goring ox. Would Rab's and Samuel's views accordingly be regarded as opposed respectively to those of the first Tanna and R. Aha?
21. And thus, in this case, it is to be assumed that the other oxen, who form the majority, have done the killing.
22. A principle which seeks to attach to the animal a status that may not belong to it. Thus it seeks to assume that this ox has been bought for slaughtering, because the majority of other oxen are bought for that purpose.
23. How, then, can Rab say that the majority principle is to be followed?
24. Whether the majority principle is to be relied upon in monetary questions.
25. Because everybody buys them as seed for sowing purposes only.
26. Since some persons buy them for purposes other than sowing, the seller can claim to have sold them for any of these purposes.

he must refund to him the price of the seed.¹  They replied unto him: Many²  buy it for other purposes.³  Now who are the Tannaim [between whom the question of the majority principle, as has been said, is in dispute]? If it is assumed that they are R. Jose,⁴  and 'those who replied to him';⁵  [surely] both, [it may be retorted], follow the majority principle; one follows the majority of men,⁶  the others, the majority of the seed,⁷  [neither of these, then, can be said to agree with the opinion advanced by Samuel!] But [the dispute referred to is] either [that between] the first Tanna⁸  and R. Jose, or [between] the first Tanna⁸  and those 'who replied to him'.

Our Rabbis taught: What does he, [who has sold garden seeds which are not eaten], refund [the buyer who sowed them without success]? — The cost of the seeds, but not expenses.⁹  And others say: Expenses also [must be refunded]. Who are these others?¹⁰  — R. Hisda said: It is R. Simeon b. Gamaliel.

Which [of the teachings of] R. Simeon b. Gamaliel [reflects such a view]? If it is suggested [that the teaching is that of] R. Simeon b. Gamaliel of our Mishnah, where we learnt: [IF] ANYONE HAS SOLD FRUIT TO ANOTHER … AND [THE BUYER] SOWED THEM AND THEY DID NOT GROW, EVEN [IF THEY WERE] LINSEED, HE IS NOT RESPONSIBLE; [now] consider in view of this, the last clause [of our Mishnah]: R. SIMEON B. GAMALIEL SAID: FOR GARDEN SEEDS WHICH ARE NOT EATEN. HE IS RESPONSIBLE: Does not the first Tanna say the same thing? [For he said]. 'for LINSEED only. HE IS NOT RESPONSIBLE', which [implies that] FOR GARDEN SEEDS WHICH ARE NOT EATEN, HE IS RESPONSIBLE,¹¹  [and this is the very law of R. Simeon]. Does not this [force the conclusion that] the difference between them is the [question of] expenses? One¹²  holds the opinion [that only] the cost of the seeds [is to be refunded], and the other¹³  is of the opinion [that the] expenses also [must be refunded]! — How [can this be proved]? Is it not possible [that the opinions of the two Tannaim are to be] reversed?¹⁴  This is no difficulty. Any Tanna [who is mentioned] last, enters [the discussion for the purpose of] adding some [restriction];¹⁵  [the objection, however, is that] all [the Mishnah] may be [the teaching of] R. Simeon b. Gamaliel, and [that only a few words are] missing, and [that] this [is what the Mishnah really] teaches: [IF] ANYONE HAS SOLD FRUIT TO ANOTHER. AND [THE BUYER] SOWED THEM AND THEY DID NOT GROW. EVEN [IF THEY WERE] LINSEED, HE IS NOT RESPONSIBLE — these are the words of R. Simeon b. Gamaliel, for R. SIMEON B. GAMALIEL SAID: FOR GARDEN SEEDS WHICH ARE NOT EATEN, HE IS RESPONSIBLE!¹⁶

But [it is] this [teaching of] R. Simeon b. Gamaliel, [reflecting the view of those 'others'] for it has been taught:¹⁷  [If] one takes wheat to grind and [the miller] does not moisten it [prior to the grinding], and makes it into bran flour or coarse bran; [or, if one takes] flour to a baker who makes¹⁸  of it bread which falls into pieces, [or, if one takes] a beast to a slaughterer who makes it unfit,¹⁹  he²⁰  is liable [to pay compensation], since he is like one who takes payment [for his services].²¹  R. Simeon b. Gamaliel says: He indemnifies him for the insult to him and to his guests.²²  [How much more, then, must he refund his expenses;] and so R. Simeon b. Gamaliel used to say:²³  There was a fine²⁴  custom in Jerusalem. If one entrusted [the preparations of] a banquet to another who spoilt it. [the latter] had to indemnify him for the insult to himself and to his guests. There was another fine custom in Jerusalem. [At the commencement of the meal] a cloth was spread over the door.²⁵  So long as the cloth was spread, guests entered. When the cloth was removed, no guests entered.

MISHNAH. [IF] ONE SELLS FRUIT TO ANOTHER, [THE LATTER] MUST ACCEPT A QUARTER [OF A KAB OF] REFUSE FOR EVERY SE' AH. [IF HE SOLD HIM] FIGS, [THE BUYER] MUST ACCEPT TEN WORMY ONES FOR EVERY HUNDRED. [IF] A CELLAR OF WINE, HE MUST ACCEPT TEN [CASKS OF] PUNGENT [WINE] FOR EVERY HUNDRED. [IF] JUGS IN SHARON,²⁶  HE MUST ACCEPT TEN BAD JUGS FOR EVERY HUNDRED.

GEMARA. R. Kattina learned: A quarter [of a kab] of pulse for each se'ah.²⁷  And [need he] not [accept] sandy matter? Surely Rabbah b. Hiyya of Kteshifon²⁸  said²⁹  in the name of Rabbah: [If a man] picks out a pebble³⁰  from his neighbour's threshing-floor

1. Because most of the linseed is sold for sowing purposes.
2. For every man who buys a large quantity of linseed for sowing, there are ten times as many people who buy it in smaller quantities for food, medicinal, or other purposes.
3. And, therefore, no refund is necessary, despite the fact that a minority of big buyers use the linseed for sowing only.
4. Since he orders the refund of the price of the seed, he is presumably of the same opinion as that held by Rab, viz. that the majority principle must be followed even in monetary matters.
5. Since they maintain that no refund is necessary, they must uphold the opinion advanced by Samuel that in monetary matters the majority principle is no guide.
6. I.e., most people buy linseed for purposes other than sowing.
7. I.e., most linseed is sold for sowing, though to a minority of buyers.
8. Who does not accept the majority principle. (Cf. supra notes 1 and 2).
9. Of ploughing and any other services incidental to sowing.
10. Lit., 'who are the others who say?'.
11. What, then, is the difference between these two Tannaim of our Mishnah?
12. The first Tanna.
13. R. Simeon b. Gamaliel_
14. The first Tanna holding the seller responsible for the expenses whilst R. Simeon does not. Those 'others' will not therefore be R. Simeon but the first Tanna of our Mishnah.
15. In this case, R. Simeon, who is last, must therefore be the one who adds the expenses to the seller's responsibility.
16. Whence, then, is it proved that R. Simeon b. Gamaliel requires the refunding of the expenses? Our Mishnah, then, cannot be the teaching of R. Simeon b. Gamaliel referred to under the authority of those 'others'.
17. Tosef. B.K. X; B.K. 99b.
18. Lit., 'baked'.
19. E.g.. by the unskilful use of the knife.
20. He, the miller, baker, or slaughterer.
21. V. B.K. 99b.
22. If he invited guests and, in consequence of the neglect of the miller, baker, or slaughterer, he was unable to cater for them.
23. Tosef. Ber. IV.
24. Lit., 'great'.
25. The cloth was a signal that a meal was in progress within the house.
26. A place name, or 'in the plain'.
27. R. Kattina is explaining the 'quarter of refuse' mentioned in our Mishnah.
28. On the Eastern bank of Tigris.
29. Bezah 38b.
30. A pebble comes obviously under the category of sandy matter.