Hilchot Nizkei Mamon - Chapter Nine

When an animal that is pregnant causes damage, the sum of half the damages may be expropriated from the mother and its offspring,1 for the offspring are considered to be part of its body. When, by contrast, a chicken causes damage, the amount due may not be collected from its eggs. [The rationale is that a chicken's] eggs are not considered to be part of its body, but rather separate and distinct from it.2

When a cow that is pregnant gored [another cow], and the calf [of the goring cow] is found at its side, but it is not known whether it had given birth before it gored or not, the sum of half the damages may be collected from the cow [alone]. Nothing may be collected from the calf, unless [the plaintiff can bring proof that it was pregnant when it gored. [The rationale is that] when a person desires to expropriate money from a colleague, the burden of proof is upon him.3

[Similarly,] if a bull gores a pregnant cow and we find its calf stillborn at her side, and we do not know if it gave birth to the stillborn calf before it was gored,4 or it gave birth to the stillborn calf because it was gored, [the owner of the bull] is required to pay for [only] the damage to the cow and not the damage to the calf. For when a person desires to expropriate money from a colleague, the burden of proof is upon him.5

When [an ox] gores a pregnant cow and causes it to miscarry, we do not evaluate the damage to the cow separately and the damage to the calf separately,6 [and obligate the owner of the ox for the total]. Instead, we evaluate the worth of the cow when it was pregnant and healthy7 and compare it to its present worth and that of the body of the fetus. The owner of the ox must pay the difference8 [if it was mu'ad] or half the difference if it was tam.

If the cow was owned by one person and the calf by another,9 the loss in the fat of the cow [caused by the miscarriage] is owed to the owner of the cow; the loss of the cow's bulk10 is divided between the owner of the cow and the owner of the calf. The carcass of the calf belongs to the owner of the calf.

[The following rules apply when] one ox was pursuing another ox, and one was damaged. [If the owner of the ox] that was damaged said: "It was your ox that caused the damage," and [the owner of the other ox] said, "I do not know, perhaps it was damaged by a rock,"11 the burden of proof is upon the one who wishes to exact payment. [This ruling applies] even though the one whose property was damaged states: "I am certain [that your ox caused the damages], and the other person says: "I do not know." If the person whose property was damaged claims: "You certainly know that your ox caused the damage,"12 if [his ox] was mu'ad, [the other person] is required to take a Rabbinic oath that he does not know [that his ox caused the damage]. If, however, [his ox] was tam, he is not required to take a Rabbinic oath. [The rationale is that] even if he admitted [that his ox had caused the damage], he would not be liable. For the liability for half the damages is a fine,13 and a person who admits culpability for a fine [when there are no witnesses to obligate him] is not liable.

[A person whose ox was damaged has no legal redress in the following instance.] Two [oxen belonging to two separate owners] were pursuing a third ox. Witnesses saw that one of the oxen caused the third ox damage, but were not able to identify which ox caused the damage. [Since] one of the owners claims, "Your ox caused the damage," and the other claims, "Your ox caused the damage," neither is liable. If both oxen belong to the same person, he is liable to pay from the body of the less valuable [ox, if that ox is tam].14 If both oxen are mu'adim, he must pay the full amount of the damage from his property.

When does the above apply? When both oxen are present before us. If, however, one of the oxen died or was lost, and it was tam, [their owner] is not liable even though they both belong to him. For he can tell the person whose property was damaged: "Prove to me that it was the ox that is here that caused the damage, and I will pay you."15

[Similar principles apply in a case where an ox was damaged by one of two oxen belonging to the same owner.] One of the two oxen that pursued [the damaged ox] was large and one was small. If the person whose ox was damaged claims that it was the larger one that caused the damage,16 and the person whose oxen caused the damage claims that the smaller one caused the damage, [the burden of proof is upon the one who wishes to exact payment].17 [Similarly,] if one of the oxen was tam and the other mu'ad, and the person whose ox was damaged claims that it was the mu'ad that caused the damage,18 and the person whose oxen caused the damage claims that the tam caused the damage, the burden of proof is upon the one who wishes to exact payment.

If there was no clear proof which of the oxen caused the damage, but witnesses testify that one of the two oxen [owned by this person] caused the damage, the person whose oxen caused the damage must pay the amount he admits.19 If the person whose property was damaged claimed, "You know that the damage was caused by the other ox in your presence,"20 the person whose ox caused the damage must take an oath mandated by Scriptural law.21 He then pays the amount he admitted. [The oath is required] because he admitted a portion [of the claim levied against him].

[The following rules apply when] two oxen were damaged, one large and one small, and there were two oxen that caused the damage, one large and one small. The person whose oxen were damaged claims: the large ox damaged the large ox, and the small ox damaged the small ox.22 The person whose oxen caused the damage, by contrast claims: "No. It was the small ox that damaged the large one, and the large ox that damaged the small one." [A similar dispute arises if] one [of the oxen that caused the damage] was mu'ad and the other tam. The person whose oxen were damaged claims: the ox that was mu'ad damaged the large ox, and the ox that was tam damaged the small ox.23 By contrast, the person whose oxen caused the damage claims: "It was the ox that was tam that damaged the large one, and the ox that was mu'ad that damaged the small one." [In both these instances,] the burden of proof is upon the one who wishes to exact payment. If there is no proof,24 the one who caused the damage is not liable [at all]. To what can this be compared? To an instance where a person claims that a colleague owes him wheat, and the colleague admits to owing him barley. In such a case, [the defendant] is required to take a Rabbinic oath and then is not liable, even for the barley, as will be explained in Hilchot To'en.25 If the person whose oxen were damaged seizes possession [of property belonging to the person whose oxen caused the damage], he may take payment for the damages to the small ox from the body of the large ox and may take payment for the damages to the large ox from the body of the small ox, as the person who caused the damages admitted.26 If he did not seize possession [of such property], however, no money at all is expropriated from the person whose oxen caused the damage.

When one ox gores [another ox] and then gores a third ox, the owner of the first ox that was gored and the owner [of the goring ox] are considered to be partners.27 What is implied? When an ox that is worth 200 [zuz] gores another ox that is worth 200 [zuz] and the carcass is not worth anything, the owner of the damaged ox is entitled to 100 [zuz from the ox that gored] and its owner 100 [zuz]. If that ox gores another ox that is worth 200 [zuz] and its carcass is of no value, the owner of the latter ox is entitled to 100 [zuz] and the owner of the first ox and the original owner of the ox are each entitled to 50 [zuz]. If that ox gores another ox that is worth 200 [zuz] and its carcass is of no value, the owner of the latter ox is entitled to 100 [zuz], the owner of the second ox that was gored is entitled to 50 [zuz], and the owner of the first ox and the original owner of the ox are each entitled to 25 [zuz]. This pattern is followed in the future [if the ox continues to gore].28

When a person whose [ox] was damaged seizes the animal that caused the damage in order to collect half the damages from its body, he is considered to be a paid watchman with regard to any damages it causes. Therefore, if it causes damages, the person whose ox was first damaged is liable, and its owner is not liable. What is implied? An ox that is worth 200 [zuz] gored [another ox], causing damages of 200 [zuz]. The person whose ox was damaged seized [the goring ox] in order to collect the 100 [zuz] that is due him,29 Afterwards, [the ox that caused the damage] gored [another ox], causing damages of 140 [zuz]. The person whose property was damaged last receives 70 [zuz], the person who took possession of the ox because it damaged his property receives the remainder of the damage done to his ox - 30 zuz30 - and the original owner, 100 zuz.31 The same principles apply in other similar situations.

When two oxen that are tamim gore one another,32 half of the remainder of the damages must be paid to the one whose ox suffered the greater damage. If both oxen were mu'adim or an ox that was mu'ad and a man33 injured one another, the entire amount of the remainder of the damages must be paid to the one whose ox [or the man] who suffered the greatest damage. [The following rules apply if] one of the oxen is tam and one is mu'ad. If [the larger amount of the damage was caused by] the ox that is mu'ad, the entire amount of the remainder of the damages must be paid [to the owner of the tam]. If [the larger amount of the damage was caused by] the ox that is tam, half of the remainder of the damages must be paid [to the owner of the mu'ad.34 What is implied? When one ox that is tam causes 100 [zuz] worth of damage to another ox that is tam, and the other ox causes 40 [zuz] worth of damage to the first ox, the owner of the first ox must pay 30 [zuz] to the owner of the second ox. If they were both mu'adim, the owner of the first ox must pay 60 [zuz] to the owner of the second ox. If the first ox was mu'ad and the second ox was tam, the owner of the first ox must pay 80. If the first ox was tam and the second ox was mu'ad, the owner of the first ox must pay 10.35