תלמוד על בבא קמא 5:1

Should one follow the majority, and most women are married as virgins. Say then that she was married as a virgin⁶Why does the Mishnah put the burden of proof on the woman when there should be a presumption in her favor to require the husband or the heirs to prove their case.! This implies that in criminal cases and in money matters one does not apply a majority argument⁷Since the woman claims money, the burden of proof is on her; cf. Chapter 1, Note 215. The Babli agrees, Baba Batra 93a.. There⁸Mishnah Baba Qama 5:1, we have stated: “If an ox gored a cow and one finds her fetus beside her.⁹If it cannot be ascertained whether the miscarriage was induced by the goring or preceded the goring, the ox’s owner pays (by biblical decree, Ex. 21:35) half of the damage done to the cow but only a quarter of the value of the fetus. It is clear that the proven fact of the goring creates a presumption that the miscarriage was induced by it. This presumption is not sufficient to force the owner of the ox to pay; the value of the fetus, had it grown to be a calf, is “money in dispute”. Money in dispute for which there are no proofs either way is split evenly between the parties (Babli Baba Meṣi‘a 2b). A similar text is in Baba Qama 5:1. The Babli, Baba Qama 46a, denies the designation as “money in dispute” and puts the burden of proof on the claimant, the injured party.” Do most cows have miscarriages? Say therefore that the goring induced the miscarriage. Rebbi Abbahu said, this implies that in criminal cases and in money matters one does not apply a majority argument. Rebbi Abun¹⁰In Baba Qama, R. Yose. said, in one case they applied a majority argument, as Rebbi Aḥa stated: If a camel was in heat among camels and one finds one of them dead, I am saying that the one in heat bit it¹¹In the Babli, Baba Batra 93a: It is known that the one in heat killed it. The Babli holds that this is not a case of majority but one of prima facie evidence: Proof that the camel was in heat implies proof that it did attack other males. Therefore, the owner of the camel in heat would have to prove that the attack by the male in heat on the male not in heat was not lethal..

Birds are not mentioned in the Mishnah. Rebbi Joḥanan said, it is inferred from [the statement of] Bar Dalaiah¹⁰⁶His statement parallels a Tosephta (1:7). In the parallel in Babli Baba Qama 55a, R. Simeon ben Laqish is quoted to the effect that in the Mishnah, Rebbi taught that chicken, pheasant, and peacock are kilaim one with the other. The language of the Babli is close to that of the Tosephta. R. Simeon ben Laqish’s position in the Babli is that of R. Yose (the Amora, colleague of R. Jonah) later in the present paragraph.: “Chicken with pheasant, chicken with peacock, even though they look similar, are kilaim one with the other.” Rebbi Simeon ben Laqish said that Rebbi stated for us a complete Mishnah: “The same applies to wild animals and birds¹⁰⁷Mishnah Baba Qama 5:7. The Mishnah notes that the Biblical precept regarding the responsibility of somebody who digs a hole in the public domain and “an ox or a donkey” falls into it (Ex. 21:33) extends to all domesticated animals, to damages assessed on a thief, to the requirement of returning stray animals to their owners, to unload animals in distress, to the prohibition of muzzling an animal used for threshing, to kilaim, and to Sabbath rest. Then the Mishnah adds, “The same applies to wild animals and birds.” Hence, the applicability of all rules of kilaim to birds is spelled out there..” Rebbi Jonah said, we need that of Rebbi Joḥanan, we state here “wild animal” and explain it there¹⁰⁸We give here cases involving domesticated and wild animals but the underlying principle is given there, in Baba Qama.. We state here “domesticated animal” and explain it there. Birds, we stated there and explain it here¹⁰⁹We really do not explain anything here but the statements of the Tosephta and Bar Dalaiah show that the detailed rules imply that birds from the same family are kilaim one with the other if one is domesticated (chicken) and the other is wild (pheasant) or semi-wild (peacock).. Rebbi Jose said, is that correct? It comes to tell you that birds are forbidden in kilaim¹¹⁰Since the Mishnah states that “the same applies,” it is implied that all rules apply uniformly. Hence, the examples of birds are unnecessary as proclaimed rules.!