Commentary on Genesis and Exodus, Theological treatise · Chapter 21 · Questions · Question 70
QUEST. LXX. How the live and dead oxe are to be divided, where they were not of equall value.
Vers. 35. IF a mans oxe hurt his neighbours oxe, &c. they shall divide, &c. 1. This is not meant of the oxe onelyonly, but of other cattell also, as if one mans ramme kill another: à parte totum intelligendum est, by one part the whole is to be understood, August. quaest. 82. in Exod. 2. And this law is most equall, because it cannot be knowne which of them first assaulted the other, the one being not knowne to push more than the other, that both the live & dead should be equally divided, Simler. The like law the Romans had in the 12. tables, that if ones beast hurt another, the owner should make it good, or deliver the beast, Gallas. 3. But this division must bee understood, where the beasts are of equall value: otherwise there should be wrong done to one of them: As if the dead oxe were worth six pound, and the live oxe but two pound, if both should be divided, then he that was owner of the live oxe should receive foure pound, twice so much as his oxe were worth, and the other should lose two pound in the price of his beast: the meaning then is, that an equall division should be made, where the oxen are equall in value, and the losse in the dead oxe to bee equally borne by them both: as if the live oxe bee worth six pound; and the dead oxe was worth as much being alive, but now is valued at foure pound, then either of them both, the oxen being sold, should have five pound a peece; and so each of them should beare 20. s. losse, Lyran. But where the value was unequall, first the price must bee made up in money, where the oddes was, and then the rest divided: as if the live oxe were worth 12. sicles, and the dead oxe worth but six alive, and foure now he is dead, these being now both sold, make 16. sicles in all: of this summe, first six sicles must be given unto the owner of the live oxe, to make up the equall value of the dead oxe, which was worth but six; then the residue being ten sicles, should bee divided, to each of them five sicles, and so the losse should bee indifferently borne betweene them, Tostat. quaest. 32. 4. To know then how an equall division may bee made, when the beasts are of unequall value, these rules must be observed: 1. Si non perdit uter que aequaliter, …f both doe not lose alike, the owner of the live beast, and the owner of the dead, the division is not equall, Tostat. quaest. 33. Medietas damni debet poni super unum, &c. The halfe of the losse must bee laid upon one, and the other halfe upon the other, Lyran. As if the live oxe be worth 12. sicles, and the dead oxe was worth but six, being alive, and now is sold for foure, here are two sicles lost, which must bee equally borne betweene them: so that the owner must have five sicles, and so he loseth but one. 2. Another rule is, that if either of the owners receive more for the live or dead oxe, than it was worth being alive, the division is not good: as in the former example, if the owner of the live oxe should have above 12. sicles, or the owner of the dead above six. 3. If the owner of the dead oxe have lesse allowed him than his dead oxe is worth, as if hee should receive but three sicles, when the dead carcase is sold for foure. 4. If the owner of the dead oxe receive as much for the dead, as he was worth alive, as namely, six sicles, whereas he is worth but foure, the division is unjust; for now the whole losse of two sicles should lie altogether upon the owner of the live oxe, Tostat. quaest. 33.