Commentary for Bava Kamma 91:15

אמרי

<b><i>GEMARA</i></b>. Rab Judah on behalf of Samuel said: This ruling is the view of Symmachus who held that money, the ownership of which cannot be decided has to be shared [by the parties].<span class="x" onmousemove="('comment',' Cf. also supra p. 196. ');">¹⁴</span> The Sages, however, say that it is a fundamental principle in law that the onus probandi falls on the claimant. Why was it necessary to state 'this is a fundamental principle in law'? — It was necessary to imply that even where the plaintiff is positive and the defendant dubious<span class="x" onmousemove="('comment',' Cf. also supra p. 196. ');">¹⁴</span> it is still the plaintiff on whom falls onus probandi. Or [we may say] it is also necessary in view of a case of this kind: For it has been stated:<span class="x" onmousemove="('comment',' B.B. 92a. ');">¹⁵</span> If a man sells an ox to another and it is found to be a gorer, Rab maintained that the sale would be voidable,<span class="x" onmousemove="('comment',' At the instance of the vendee. ');">¹⁶</span> whereas Samuel said that the vendor could plead 'I sold it to be slaughtered'.<span class="x" onmousemove="('comment',' As Samuel follows his own view that this grand principle in law accepted by the Sages has to he applied in all cases and in all circumstances, as the Gemara proceeds to explain. ');">¹⁷</span> How so? Why not see whether the vendee was a person buying for field work or whether he was a person buying to slaughter?<span class="x" onmousemove="('comment',' Would this consideration not be a piece of good circumstantial evidence? ');">¹⁸</span> — Samuel's view can hold good where he was a person buying both for the one and the other. But why not see if the money paid corresponded to the value of an ox for field work, then it must have been purchased for field work; if, on the other hand it corresponded to that of an ox to be slaughtered, then it must have been purchased for slaughter?<span class="x" onmousemove="('comment',' As indeed maintained by R. Judah in a similar case dealt with in B. B. 77b; as to the other view, cf. Tosaf. a.l. ');">¹⁹</span> — Samuel's view could still hold good where there was a rise in the price of meat so that the ox was worth the price paid for one for field work.

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