Q&A: The Issue of the Three-Year Presumption
The Issue of the Three-Year Presumption
Question
In Bava Batra 28b, Rabbi Yohanan said: “I heard from those who went up to Usha, who would say: From where do we know the rule of a three-year presumption? From an ox that becomes forewarned,” etc.
Now there, once it gored three times it became a forewarned ox, but here, if it did not gore, what does he pay? etc.
So the Talmud concludes from this that the presumption is three years and not four.
Tosafot, s.v. “But if so, presumption,” asks that apparently one could infer from here that the issue follows the view of making the ox itself forewarned, and they reject this because—
and this is their language: “One may say that the sugya here follows the one who says ‘to make the ox forewarned,’ and those who went up to Usha said only that we derive it from a forewarned ox and no more; and we derive it from the three warnings of the person, and not from the three gorings of the ox.” End quote. See the Maharsha there, who explained
that the tanna, Rabbi Ishmael, stated only the derivation, and the entire explanation is from the amora.
I have two difficulties:
A. From where do we know that the sugya is according to the view of making the ox itself forewarned? After all, in the Talmud’s conclusion it learned from the goring and not from the payments—not because of making the ox itself forewarned, but because the reason four times are needed in order to pay is that it must actually be a forewarned ox in practice, unlike the third time, when that status exists only potentially; whereas in the case of presumption, already on the third occasion it is already established.
B. Seemingly there is proof here for Rabbi Shimon Fischer, who held that amoraim forced interpretations into the words of the tannaim, for Tosafot, according to his approach, brings evidence that we assume “to make the ox itself forewarned,” and nevertheless they did not trouble themselves to tell us that this is only their own opinion.
Answer
A. If this were according to the approach of making the person forewarned, then at least in the Talmud’s answer (that there is nothing on the basis of which to obligate payment if it has not yet gored once it was already a forewarned ox), we would have had to arrive at a fifth goring incident—as Tosafot itself writes at the end. Therefore Tosafot says that through the three warnings of the person, the ox becomes forewarned and immediately pays already on the fourth. Tosafot is addressing the Talmud, which raises the possibility that presumption would work even without a claim. At that stage it appears to be proceeding according to the view of making the ox itself forewarned. In the conclusion, a presumption does not work without a claim, and now it seems to me that there is no longer any necessity that this be according to the view of making the ox itself forewarned.
B. I did not understand the claim. Obviously, if there is a difficulty, people force the words of the tannaim. What does that have to do with Rabbi Shimon Fischer? And how is it connected to the sugya here?
Discussion on Answer
A. The ox has to be actually forewarned, and from that they wanted to infer that forewarning means making the ox itself forewarned.
B. That idea is indeed attributed in the name of the Vilna Gaon (Hanshke wrote about it several times, and there is a response of mine here on the site). In my view it is really not plausible at all, as I explained there. In any case, I do not see how you are proving it from our sugya. They did not state that they were following the view of making the ox itself forewarned—so what? According to Tosafot, which shows that this is what is meant, the Talmud simply does not point out obvious things. What does that have to do with taking the words of the tannaim out of their meaning?!
Hello,
A. In my opinion this really is taken out of context, since the Talmud did not mention even half a word about the matter. Still, it seems to me that I saw this in Meromei Sadeh [in any case I am disappointed].
B. The very fact that the Talmud discusses Rabbi Ishmael—that they are coming to explain him—and according to Tosafot it turns out that this is really for themselves, and I do not care
whether the explanation is “making the ox itself forewarned” or not. The point is that the Talmud looks like one continuous piece and not like two commentators, which leads
to the question whether in other places in the Talmud the commentator is actually an independent source in his own right.
Hello,
A. I know Tosafot’s conclusion; my whole question was about the initial assumption.
Even if the initial assumption is dealing with a presumption unaccompanied by a claim, what is the proof for “making the ox itself forewarned”? The sugya is not about that at all, as explained above.
B. Rabbi Shimon Fischer wrote in his book Beit Shai [it was brought on this site here, and I also heard that several people already mentioned it when he passed away] that amoraim wanted to state their own view, and so that this would not be apparent they inserted their statements as though it were the view of the tannaim [if I understood correctly]. And seemingly you can see that here as well from the fact that this is legitimate in Tosafot’s eyes.