Talmud - Bava Batra 93a בבא בתרא צ״ג א׳

what is the reason that the sale is not considered to be a mistaken transaction? Is it not because a majority of slaves are like this, i.e., either thieves or gamblers? Apparently, the majority is followed in monetary matters.

The Gemara rejects the proof: No, it is because all slaves are like this. Accordingly, no proof can be drawn as to whether we follow the majority in monetary matters.

Come and hear another challenge to Rav’s opinion from a mishna (Bava Kamma 46a): In the case of an innocuous ox that gored and killed a cow, and the cow’s fetus was found dead at its side, and it is not known whether the cow calved before the ox gored it and the fetus’ death was unrelated to the goring, or whether it calved after the ox gored it and the fetus died on account of the goring, the ox’s owner pays half the cost of the damage for the cow, as is the halakha for an innocuous ox (see Exodus 21:35), and one-quarter of the cost of the damage for the offspring. Since it is uncertain whether the ox caused the death of the fetus, its owner pays for half of the standard liability of half the cost of the damage.

The Gemara explains the proof from the baraita: But why, according to Rav, should he only pay for one-quarter of the damage to the fetus? Since there is an uncertainty, let us say: Follow the majority of cows, and since the majority of cows become pregnant and calve live offspring, one should conclude that this cow, which did not, certainly miscarried due to the ox goring it, and the ox’s owner should be liable for half the cost of the fetus. Since that line of reasoning is not applied here, it is apparent that the majority is not followed in monetary matters.

The Gemara rejects the proof: There, the reason that the ox’s owner pays for only one-quarter of the damage for the fetus is due to the fact that we are uncertain about how it died, as it is possible to say that the ox approached the cow from its front and it was due to the cow’s fright, not due to the goring, that it miscarried, meaning that the ox’s owner would not be liable; and it is also possible to say that the ox approached the cow from behind it and gored it, and that is why the cow miscarried. Accordingly, the payment for such damage constitutes property of uncertain ownership, and the halakha is that all property of uncertain ownership is divided equally between the two parties.

The Gemara suggests: Let us say that this dispute between Rav and Shmuel is parallel to a dispute between tanna’im, as it is taught in a baraita: In the case of an ox that was grazing and another ox that was found killed at its side, even though this dead ox has been gored and that grazing ox is forewarned with regard to goring, or this dead ox has been bitten and that grazing ox is forewarned with regard to biting, nevertheless one does not say that it is evident that this grazing ox gored the dead ox or that grazing ox bit it, despite the fact such behavior is typical for the ox; rather, one cannot draw any definite conclusions. Rabbi Aḥa says that in the case of a rutting male camel that is rampaging among other camels and another camel that was found killed at its side, it is evident that this rampaging camel killed it, as such behavior is typical for a rutting camel. Therefore, the owner of that camel is liable.

Those who suggested the parallel between the tannaitic dispute and the dispute between Rav and Shmuel assumed that a majority and a logical presumption about whether an event will happen are equivalent in their capacity to determine the facts of a case. Consequently, let us say that Rav, who says that one follows the majority in monetary matters, holds in accordance with the opinion of Rabbi Aḥa, who follows a presumption to determine the facts of a case, and that Shmuel, who says that one does not follow the majority in monetary matters, holds in accordance with the opinion of the first tanna, who does not follow a presumption.

The Gemara rejects this: Rav could have said to you: I am stating my ruling even in accordance with the opinion of the first tanna, as the first tanna says that one cannot draw a definite conclusion only there, in the case of the grazing ox, as we do not follow a presumption in monetary matters, but he concedes that we follow the majority in monetary matters.

And Shmuel could have said to you: I am stating my ruling even in accordance with the opinion of Rabbi Aḥa, as Rabbi Aḥa says that one can draw a definite conclusion only there, in the case of the camels, since we follow a presumption in monetary matters, as this camel itself is presumed, based on its behavior, to be the killer. But he concedes that we do not follow the majority in deciding monetary matters.

The Gemara suggests: Come and hear another challenge to Rav’s opinion from the mishna: With regard to one who sells produce to another that is sometimes purchased for consumption and sometimes for planting, and the buyer planted it and it did not sprout, and even if he had sold flaxseeds, which are rarely sold as food, the seller does not bear financial responsibility for them.

The Gemara explains the proof: What novelty is indicated by saying: Even if he had sold flaxseeds? Is it not that even where he sold flaxseeds, of which the majority is purchased for planting, and they were not suitable for that purpose, nevertheless the sale stands because we do not follow the majority in monetary matters?

The Gemara concedes that the mishna cannot be reconciled with Rav’s opinion, but suggests that there are other tanna’im who hold in accordance with his opinion. It is a dispute between tanna’im, as it is taught in a baraita: With regard to one who sells produce to another, and the buyer planted it and it did not sprout, if the produce was seeds for garden plants, which are not eaten at all, then the seller bears financial responsibility for them. If the produce was flaxseeds, which are only occasionally eaten, then the seller does not bear financial responsibility for them. Rabbi Yosei says:

Traduction : The William Davidson digital edition of the Koren Noé Talmud, with commentary by Rabbi Adin Even-Israel Steinsaltz.

BavaBatra 93a examines whether monetary disputes follow majority reasoning, using cases of suspect slaves and an ox goring a pregnant cow.