If an ox gored a [pregnant] cow, and its fetus were found [dead] at its side, and it were not known whether it gave birth before it was gored, [so that the fetus did not die because of the goring], or whether it gave birth after it was gored, [and it miscarried because of the goring], he (the owner) pays a half-nezek for the cow and a quarter-nezek for the fetus. [For a tam pays a half-nezek, and the status of this fetus is in doubt, so that they divide. Our Mishnah is in accordance with Somchos, who says that money whose ownership is in question is divided. But the sages say: This is a great principle in law — "The burden of the proof is upon him who would extract (payment) from his neighbor." And the halachah is in accordance with the sages. And even if the nizak says: "I am certain" (that your ox injured mine), and the mazik says: "Perhaps" (it did), "the burden of the proof is upon him who would extract (payment) from his neighbor."] Likewise, if a cow gored an ox, and its fetus were found at its side, and it is not known whether it gave birth before or after it gored, he pays a half-nezek from the cow and a quarter-nezek from the fetus. [He pays a half-nezek from the cow if it were found (a tam paying a half-nezek from its body), and, if it were not found, he pays a quarter-nezek from the fetus. For if it were known that it gored before it gave birth, the entire half-nezek would be paid from the fetus. For if a pregnant cow gores, it and its fetus gores. And if it gored after it gave birth, nothing would be paid from the fetus, the fetus not having gored. And a tam pays only from its body, so that now the status (of the ownership of the money) being in doubt, it is divided; and of the half-nezek that he must pay, a quarter-nezek is paid from the fetus.]
Rambam on Mishnah Bava Kamma
An ox that gores a cow and a fetus was found at it's side:
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Bartenura on Mishnah Bava Kamma
שור שנגח את הפרה – who was pregnant.
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English Explanation of Mishnah Bava Kamma
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.
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Rambam on Mishnah Bava Kamma
This mishanh is according to the opinion of Sumchos, who he says money that lies in doubt you divide. And if it would become clear to us that after it miscarried this fetus, that it was gored, we would not obligate for the fetus anything. And similarly if it became revealed to us it was gored while it was pregnant, and it miscarried, he will be obligated half damages even for the fetus. And since there's a doubt he pays a fourth of the value of the fetus, that is a half of a half, and this is in the case of a innocuous.
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Bartenura on Mishnah Bava Kamma
ונמצא עוברת בצדה – that died.
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English Explanation of Mishnah Bava Kamma
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, the owner of the ox pays half damages for the cow and one quarter damages for the newborn. 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.
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Rambam on Mishnah Bava Kamma
And if it was accustomed he pays complete damages for the cow and half damages for the fetus.
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Bartenura on Mishnah Bava Kamma
ואין ידוע אם עד שלא נגח ילדה – and did not die because of the goring.
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English Explanation of Mishnah Bava Kamma
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, the owner pays half damages from the value of the cow and one quarter damages from value the newborn. 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.
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Rambam on Mishnah Bava Kamma
And thus that when a cow gores an ox and is found it's fetus at it's side, if the (goring) cow is found, you take the half damage from the body of the cow, just like usual. And if the cow was lost and not found, and yet the fetus is found, we pay from the fetus a quarter of the damages since that if it became revealed to us while it was still in it's womb when it gored the law would have been that they pay half damages from the fetus, because this principle has been explained- a pregnanant cow, it and the fetus gores.
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Bartenura on Mishnah Bava Kamma
אם משנגחה – and because of the goring aborted the fetus.
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English Explanation of Mishnah Bava Kamma
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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Rambam on Mishnah Bava Kamma
And since it is a doubt you pay a quarter as has been explained.
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Bartenura on Mishnah Bava Kamma
ורביע נזק – 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): “He who seeks reparation from his fellow must produce evidence (i.e., upon him is the burden of proof).” 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, “sure”) and the [owner of the] animal who caused the damages says “perhaps” (i.e., a possibility), “he who seeks reparation form his fellow must produce evidence.”
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Rambam on Mishnah Bava Kamma
And the halakah is not like Sumchos in all of this discussion, rather like the Rabbis who say one who takes out from his friend upon him is the onus. And even if the damagee says 'I am positive' (you owe money) and the (alleged) damager says 'I don't know', we do not take from him anything except with proof.
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Bartenura on Mishnah Bava Kamma
וכן פרה שנגחה את השור וכו'- 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.
