The Eric B. Sitt Edition, an audio series on the Babylonian Talmud, Tractate Baba Batra. This tractate, the longest tractate in the Talmud by page count, has been dedicated by our good friend and pioneer student in the Daf Yomi class, Adam Azraq, for the success of his dear children. May they grow up to give him much joy, and may they have wisdom, understanding, and knowledge. With God’s help, may they merit, at the proper time, their appropriate spouses, livelihood, wealth, and honor, and may these blessings come to him, his wife, and his entire family forever. Amen.
Today’s page is being studied in memory of Linda bat Esther. Amen.
We had this case already. If an ox gores a cow during its first three incidents, the owner pays half the damage. That is the Torah’s law. The question is: What if the cow was pregnant?
If the cow was pregnant, the owner must pay half the damage to the mother and half the damage to the fetus, because the fetus was killed when the ox gored the cow. The problem is that after the cow was gored, you see a dead fetus next to it, but you do not know what happened. Perhaps the cow miscarried before it was gored, in which case the owner of the ox owes nothing for the fetus. Or perhaps the miscarriage resulted from the goring.
In such a case, there is no question that the owner pays half the damage for the mother. We know that the goring caused that damage. But regarding the dead fetus lying on the ground, we do not know whether it died as a result of a miscarriage or as a result of the goring. What do we do?
The teaching states: If an ox gored a cow and a fetus was found beside her, and it is not known whether she gave birth before the goring or whether she gave birth as a result of the goring, the owner pays half the damage for the cow and one quarter of the damage for the fetus. This follows the teaching of Sumchos, who says that when money is in doubt, it is divided. Ordinarily, the owner would have to pay half the damage. Since there is doubt, he pays one quarter.
Why one quarter? Rav, you remember, says that we follow the majority. The majority of cows give birth to healthy calves. Therefore, one might reasonably assume that this fetus died because of the goring, and when there is a compromise, the owner should pay the full half-damage for the fetus as well.
The Gemara answers that although the majority of cows give birth to healthy offspring, this case involves an additional uncertainty. Even if we say that the fetus died because of the goring, there are two possible ways in which the goring could have caused the death. The ox might have gored the cow from the front. In that case, the cow may have become frightened before the goring and miscarried because of the fear. That is indirect causation, and one does not pay for it. Alternatively, the ox may have gored her from behind. In that case, she would not have known that she was being attacked, and the fetus may have died directly because of the goring.
Thus, even on the side that we follow the majority and assume that the fetus died because of the goring, there remains another uncertainty: Was the cow gored from the front, in which case the miscarriage resulted from fright and no payment is due, or was she gored from behind, in which case payment is due? Therefore, the majority does not establish that the owner must pay the full half-damage. He pays one quarter. Accordingly, no question can be brought against Rav from this case.
The Gemara then suggests that the dispute between Rav and Shmuel may actually be a dispute between earlier authorities. The question is whether, in a monetary case, one follows the majority.
Consider another case. An ox is grazing in a field, and next to it you find another ox that has been killed. There are other oxen in the vicinity, but this ox is standing directly beside the dead one. Furthermore, the living ox is known to be an ox that has gored three times and is therefore already considered dangerous. We have an indication here: Put two and two together. This must be the ox that gored the other one.
Nevertheless, the first opinion says that we do not say with certainty that this ox gored the dead ox. Perhaps another animal did it. You cannot incriminate this ox merely because it has an established tendency to gore.
The second opinion gives a stronger case. A male camel was mating with a female camel, and, as often happens in that situation, the male became agitated and began kicking and attacking everything around him. A camel was found dead beside him. The second opinion says that we can say with certainty that this male camel killed it, because there is an established pattern that a camel behaves this way while mating. Since this is the animal known to have that tendency, we attribute the killing to it.
We therefore have a dispute. One authority says that we do not follow the established presumption that this animal was responsible, while the other says that we do. The Gemara now assumes that an established presumption and a majority are parallel principles: If one follows the presumption, one should also follow the majority, and if one does not follow the presumption, one should not follow the majority.
Based on that assumption, the Gemara suggests that the second opinion, which attributes the killing to the camel, follows Rav, who says that we follow the majority. Shmuel, however, responds that the two principles are not necessarily equal.
Shmuel could agree with Rav Acha, who attributes the killing to the camel, because in that case the animal with the established presumption is directly in front of us. We have a specific camel before us that is known to become violent in that situation. When the animal itself is present and has an established tendency, we may attribute the act to it.
That is different from an ordinary case of a majority. When one relies on a majority, the majority itself is not before us. If this animal did not gore, then perhaps one of the other animals did. That is a majority somewhere in the world, but it is not directly in front of us. In the camel case, by contrast, the particular animal with the established presumption is right before us.
Therefore, Shmuel can say: Normally, I do not follow a majority in this type of monetary case. But here I am dealing with the very camel that is known to become violent under these circumstances. Since that camel is before us with an established presumption, I attribute the killing to it. One should not connect the two cases and assume that the rules governing an established presumption and a majority are identical.
The Gemara then brings a teaching: If a person sells produce to another person, and the buyer plants it but it does not grow, even if the seller sold him flaxseed, the seller is not liable. This appears to follow Shmuel. Most people buy these items for purposes other than planting, so the seller can say, “I did not know that you intended to plant them.” The buyer cannot rely on the majority of people who purchase the item for planting.
The Gemara asks: What does the word “even” add? Why does the teaching say “even flaxseed”? The answer is that most people purchase flaxseed for planting. Thus, the case seems clearly to follow Shmuel: Even though the majority of people buy flaxseed for planting, the buyer receives no compensation when the seeds fail to grow.
Another opinion, however, says that the buyer does receive his money back. The seller cannot claim, “I thought you bought the flaxseed to eat.” Who eats flaxseed in this context? The buyer purchased it for planting, as do most people who purchase it. According to this opinion, the seller must return the purchase price.
We therefore have a dispute between the first opinion and this later opinion. The first opinion says that the buyer does not receive a refund, while the later opinion says that he does. There is also a third opinion. The anonymous third opinion says that many people purchase the item for other purposes as well, so one cannot quickly claim that the majority of people buy it for planting.
The Gemara analyzes these three opinions. It asks which authority follows Rav and which follows Shmuel. Perhaps the dispute is between the opinion that requires a refund and the anonymous opinion. The opinion requiring a refund clearly follows Rav, because it relies on the majority of people who purchase the item for planting. The anonymous opinion, which denies a refund, also appears to be following a majority, but it defines the relevant majority differently.
One opinion considers the majority of people: Most people who buy the item purchase it for planting. The anonymous opinion considers the majority of the product itself. If one weighs all of the flaxseed in the world, most of it is used for eating, fuel, and other purposes. Therefore, the buyer has no claim. Although most purchasers may buy it for planting, most of the product itself is used for other purposes.
That anonymous opinion is therefore not necessarily following Shmuel. It follows the majority, but it has a different understanding of which majority is relevant. The dispute may accordingly be between the first opinion and the opinion requiring a refund, or between the first opinion and the anonymous opinion. The first opinion clearly follows Shmuel, while either of the other opinions may follow Rav.
In any event, there is clearly a dispute between the first opinion and one of the other opinions about whether one follows the majority. The first opinion says that the buyer receives no refund because we do not follow the majority. The opinion requiring a refund says that since most people buy the item for planting, the seller must return the money. The anonymous opinion also denies a refund, but for a different reason: It follows the majority of the product rather than the majority of the purchasers.
The Gemara then raises another question. When the opinion requiring a refund says that the seller must return the buyer’s money, what exactly must he pay? The buyer says, “I bought these seeds for planting. I planted them, and they did not grow. Give me back my money.” If he paid two dollars for the seeds, does the seller return only the two dollars, or must he also reimburse the buyer for the work and expenses involved in planting them?
The Gemara searches for the authority who would require payment for those expenses. It brings a teaching concerning a person who brings wheat to a miller. The miller was supposed to grind it, but he failed to moisten the wheat first. As a result, it did not grind properly and became coarse bran. The husk remained on the wheat, and the flour could not be sifted properly.
Another case concerns a person who brought flour to a baker and asked him to bake bread. The baker produced bread that fell apart. A further case concerns a person who brought an animal to a butcher and asked him to slaughter it. The butcher mishandled the knife, and the slaughtering was rendered invalid.
In all of these cases, the miller, baker, or butcher must pay. That is his job. If I pay you to perform a service and you ruin the product, you must compensate me. Everyone agrees that the person who caused the loss must pay for the item itself.
But there is more. Suppose the owner was hosting guests. He came home and had no bread or meat to serve them because the baker or butcher had ruined the food. He was embarrassed in front of his guests, and the guests were embarrassed as well. The teaching says that the responsible person must somehow compensate him not only for the item but also for the embarrassment.
There was also a well-known custom in Jerusalem. A person would spread a cloth over the entrance to his home. When the cloth was positioned in one way, guests knew that they could enter and join the meal. When the cloth was removed or positioned differently, they knew that there was no meal available and that they should eat elsewhere.
Some explain the custom differently. When the cloth was up and the guests were entering, the host had not yet begun eating. Once all the guests had entered, the cloth was placed in front of the entrance so that nobody could see the people eating. The purpose was to protect the privacy of those at the meal. When the cloth was removed, people understood that the meal was over and that they should not come in.
The guests therefore knew when they should enter for the meal and when they should not. According to the commentary, when the cloth was placed over the entrance, the doors remained open, but the people inside could not be seen. It was a sign that the meal was taking place privately.
The important point in the commentary is that the person who ruined the food must pay for the food and for the owner’s embarrassment. The owner had invited guests, and now he had nothing to serve them. If the teaching requires payment for embarrassment, which is not direct damage but indirect causation, then certainly the opinion requiring a refund would say that the seller must pay the buyer’s planting expenses.
We therefore have a dispute in this teaching between the first opinion and the later opinion. Do we pay only for the seeds, or do we also pay for the expenses caused by the failed planting? The authorities who say that one does not pay for embarrassment would likewise say that one does not pay for the planting expenses. The authority who requires payment for embarrassment would also require payment for the expenses.
Perhaps, once we have found this dispute in the teaching, we can return to the earlier teaching and say that we were correct in our original explanation. Perhaps the earlier teaching itself reflects a dispute between the first opinion and the later opinion, with one requiring reimbursement for expenses and the other requiring payment only for the seeds.
But the Gemara rejects that approach. Who says that merely because there is a dispute in the later teaching, the earlier teaching must also contain a dispute? The earlier teaching can be understood entirely as the view of the later authority. The first part says that if a person sells produce and it does not grow, even if he sold flaxseed, the seller is not liable according to that authority. The later part says that with garden seeds, whose only purpose is planting, the seller must return the money.
Thus, the entire earlier teaching may reflect one opinion, without introducing a dispute between two opinions. We should not force a dispute into the teaching when there is no clear indication that one exists. Instead, we must continue searching for a source that clarifies whether the refund includes only the price of the seeds or also the buyer’s expenses.
The Gemara finds another teaching. A person brought wheat to a miller, but the miller failed to moisten it before grinding. The wheat did not grind properly and became coarse bran. A person brought flour to a baker, but the baker produced bread that fell apart. A person brought an animal to a butcher, but the butcher rendered the slaughtering invalid.
In all of these cases, the responsible party must pay. This indicates that one pays for the entire loss and not merely for the original item. Similarly, the seller of defective seeds should have to return the price of the seeds and reimburse the buyer for the expenses incurred in planting them.
The teaching adds that if a person was preparing a meal for his friend and ruined the food, he must pay not only for the food but also for the embarrassment caused to the host and his guests. If the teaching requires payment for embarrassment, it certainly supports the position that the seller must pay for the buyer’s expenses as well.
However, the Gemara explains that the payment for embarrassment is itself indirect damage. It is not direct damage caused to the food or to the animal. Therefore, the matter is not completely straightforward.
In the end, the conclusion is that we have a dispute in this later teaching concerning whether the responsible party must pay for the additional expenses. Perhaps that dispute allows us to return to the earlier teaching and interpret it as a dispute as well. But the Gemara rejects that conclusion. The earlier teaching may be entirely the view of one authority, and the other authorities may disagree with it elsewhere.
Therefore, the final ruling stated here is that there is no payment for embarrassment and no reimbursement for the additional planting expenses. The seller returns only the money paid for the seeds themselves.
May we continue to study with success.