Bava Kamma 35b — the Talmud in English

Both are exempt,

for the claimant must bring proof as to which ox is the damaging ox.

G.

If both

of the two pursuing oxen were the property

of one person,

and there are witnesses that one of them caused the damage, but they do not know which one,

both are liable,

and the injured party collects from the bodies of the two oxen half of his damage. D. If the two oxen belonging to one person were not equal in size, but

one was

of them

large,

and it is sufficient in value to pay half the damage,

and one small,

which is not sufficient in value to pay half the damage, and it is not known which one was the goring ox.

The injured party says:

the ox

larger

than the other

caused the damage

to my ox, and therefore I will collect from it,

and

if

the damager says, “It is not so; rather,

the

small one caused the damage

to your ox, and from it you shall collect your debt.”

The injured party must bring proof that the large one caused the damage to him.

For the one who takes something from his fellow bears the burden of proof.

E. The two pursuing oxen were small [so that half their value was insufficient to pay half the damage caused by a large ox], but

one

of them was a

docile ox,

whose law is that payment is made from its body,

and one was a goring ox,

whose owner pays from the upper property, and it is not known which was the goring ox.

The injured party says

the

goring ox caused the damage

to my ox, and you must pay the entire damage from the upper property.

And the damager says, “It is not so; rather,

the ox

docile caused the damage

to your ox, and you shall collect from its body whatever it contains, while you shall lose the remainder.”

The injured party must prove that the goring ox gored his ox, for

the one who takes something from his fellow bears the burden of proof.

F.

There were

the

oxen of the injured party two, one

of them

large, and

the

other small. And

so too, the

damager’s oxen were two, one

of them

large,

which is sufficient to pay half the damage,

and

the

other small. [

The damager’s oxen belong to one person and the injured oxen to another.]

The injured party says:

your

large ox damaged

my

large ox, and

your

small one

damaged

my

ox

small one;

it follows that I can collect half the damage of my large ox from your large ox, and half the damage of my small ox from your small ox.

And

if

the damager says, “It is not so; rather,

my

small

ox damaged

your

ox

large, and

my

large

ox damaged

your

ox

small,”

it follows that for the damage of your large ox you will be forced to collect from the small ox, which does not contain enough to pay half the damage of your large ox, while the damage of your small ox you can collect from my large ox.

The injured party must bring proof of his words.

Z. There were two small oxen [which were not sufficient to pay half the damage of a large ox] pursuing two oxen, one of which was large and the other small. But of the pursuers,

one

of them was a

docile ox, and one

of them was a

goring ox.

The injured party says:

your

goring ox damaged

my

large ox, and

your

docile ox

damaged

my

ox

small,

and it follows that you must pay the value of the large one from the upper property, and the value of the small one from the body of the docile ox.

And

if

the damager says, “It is not so; rather,

my

docile

ox damaged

your

ox

large, and

the

goring

ox damaged

your

ox

small.”

It follows that for the damage of the large one I will pay from the body of the small one whatever it contains, while you shall lose the remainder up to half the damage, and the value of the small one you shall collect from my docile ox. The injured party must bring proof of his words, for

the one who takes something from his fellow bears the burden of proof.

Gemara:

Rabbi Hiyya bar Abba said: “This teaches,

it is proved from our Mishna that

his colleagues disagree with Sumakhos, who said, ‘Money placed in uncertainty is divided.’”

For it is stated in the Mishna that in every monetary uncertainty, the one who takes something from his fellow bears the burden of proof, whereas according to Sumakhos, the law in every monetary uncertainty is that they divide it, even without proof.

Rabbi Abba bar Memel said to Rabbi Hiyya bar Abba:

But did

Sumakhos say even in a case of certainty and certainty,

when each one claims with certainty that the law is with him, that they divide?

Perhaps Sumakhos said “they divide” only when the claimant makes a claim of certainty and the defendant says, “I do not know,” for in that case it is reasonable that the claimant takes half even without proof. But if the injured party denies and says, “It is certain to me that it was not as the claimant says,” perhaps Sumakhos concedes that the one who takes something from his fellow bears the burden of proof. If so, it is possible that our Mishna is speaking of certainty and certainty, and does not disagree with Sumakhos?

He said to him,

Rabbi Hiyya bar Abba:

Yes! Sumakhos said,

“Money placed in uncertainty, they divide,”

even in a case of certainty and certainty,

and if so, the tanna of our Mishna is not in accordance with Sumakhos.

And

the Gemara wondered:

From what

was it obvious to Rabbi Hiyya bar Abba

that the Mishna is a case of certainty and certainty?

And the Gemara explains:

For it teaches: “This one says, ‘Your ox caused the damage,’ and this one says, ‘It is not so,’”

but rather, it was injured by a rock,

and it implies that the defendant denies the claimant’s words and says, “It was not as you say.” This is a claim of certainty.

Rav Pappa challenged this:

Why did Rabbi Hiyya bar Abba need to say that our Mishna is speaking of certainty and certainty, and that Sumakhos likewise speaks of certainty and certainty, and that our Mishna is not in accordance with Sumakhos? For in any event there is proof from the Mishna that it is not in accordance with Sumakhos, since the Mishna necessarily speaks of certainty and uncertainty [as follows], whereas Sumakhos said that in a case of certainty and uncertainty they divide.

For according to Rabbi Hiyya, who explains that our Mishna is a case of certainty and certainty, the following difficulty arises:

From the beginning,

which speaks of a case in which the damager and the injured party are both

certainty and certainty,

also

the conclusion, likewise,

we will have to explain as referring to claims of

certainty and certainty.

Come and say the conclusion [

the conclusion of the beginning]: There were two docile oxen pursuing one ox. And among the pursuers,

one was large and one small. The injured party says, ‘The large one caused the damage,’ and the damager says, ‘It is not so; rather, the small one caused the damage,’

and likewise, the pursuers were two,

one docile and one goring; the injured party says, ‘The goring one caused the damage,’ while the damager says, ‘It is not so; rather, the docile one caused the damage; the one who takes something from his fellow bears the burden of proof.’

And it implies:

If he does not bring

the injured party

proof

of his words,

he takes as the damager says,

and collects from the small one and from the docile one, despite the fact that from the claims of the injured party it implies that he admits that the small one or the docile one did not damage his ox. And if we establish the conclusion as certainty and certainty,

let us say: “Let it be a refutation”

from our Mishna to the words

of Rabbah bar Natan, who said, “If he claimed wheat from him and he admitted barley to him, he is exempt,”

because contained within the very claim of wheat is an admission that he does not owe him barley, but only wheat. Therefore, the defendant is entirely exempt, despite the fact that he admitted concerning barley, because the claimant for his part admitted that he does not owe him the barley; and even if the defendant was liable, he had already waived it for him. But in the Mishna it is explained that the injured party, the claimant, says, “Your large ox or goring ox caused the damage,” and the other admits to him concerning a small ox or a docile ox; the damager’s admission obligates him to pay at least in accordance with his words, despite the fact that from the injured party’s claim it is proved that specifically the large one caused the damage and not the small one.

And necessarily, if we wish to reconcile the Mishna with the words of Rabbah bar Natan, we cannot establish the latter clause as a certain claim and a certain claim,

but as a certain claim and an uncertain claim.

And the Gemara discusses: how shall we establish the Mishna?

Who is the one saying “certain,” and who is the one saying “uncertain”?

Who is the one saying “certain,” and who is the one saying “uncertain”?

Let us say: the injured party says, “certain”

to me that the large one or the muad caused damage to my ox,

and

concerning this

says

the

damager, “uncertain,”

it was not so; rather, the small one or the tam caused damage to your ox.

If we interpret it this way,

it still should be said: let it be a teyuvta of Rabah bar Natan,

for according to Rabah bar Natan, also in this case the damager, the defendant, is completely exempt, since from the injured party’s claim concerning the goring of the damager’s large ox it is proven that he is not claiming his small ox, and it follows that the damager’s admission concerning the damage caused by the small ox need not obligate him, because the injured party has already admitted that he was not damaged by the small ox.

Rather,

it is necessarily the case that the latter clause is speaking in a manner

that the injured party says: “I am uncertain”

whether your large ox or your habituated ox damaged my ox,

and the damager says: “I am certain”

that my small ox or my innocuous ox damaged your ox.

And in this manner, even according to Rabah bar Natan, the defendant, the damager, is obligated to pay according to his admission, for initially the injured party’s claim was uncertain—namely, either the small ox or the large ox caused the damage—and it follows that the damager’s admission that his small ox caused the damage was never denied by the injured party; therefore, the damager must pay at least according to what he admitted.

The Gemara raises a difficulty against Rav Pappa’s interpretation:

And since the latter clause

concerning two oxen that pursued one, speaks in a manner in which the

injured party

makes a claim of

uncertainty, and the damager

says

“I am certain,”

if so,

the first clause also

concerning an ox that was pursuing another ox, where there is uncertainty whether the pursuer damaged the pursued or whether it was injured by a rock, speaks in the same manner: the

injured party

says

“I am uncertain: your ox caused the damage,”

whether your ox caused the damage,

and the damager

says

“I am certain”

that it was injured by a rock.

And

is it possible that

Sumakhos said even in this case

that there is substance to the injured party’s claim of uncertainty, and they divide?

For since the Mishna needed to say that also in this case “the one who seeks to take from another bears the burden of proof,” it is proven

that it was necessary to teach us

that the halakha is

not

according to Sumakhos, who holds that in every case they divide. Yet is it not obvious that in this case the injured party’s claim has no substance even to extract half, since he himself is not certain of the correctness of his claim? How, then, is it possible that Sumakhos holds that they divide?

The Gemara answers:

No,

there is no necessity to interpret that the first clause and the latter clause speak in the same manner.

And in this way the Mishna will be resolved:

The latter clause,

concerning two oxen that pursued one, speaks of an

injured party

who says

“I am uncertain”

whether the large ox caused the damage,

and the damager

says

“I am certain”

that the small ox caused the damage.

Whereas the

first clause,

concerning an ox that was pursuing another ox, and we are uncertain who caused the damage to the pursued ox—whether the pursuer or whether it was injured by a rock—speaks in a manner in which the

injured party

says

“I am certain”

that the pursuer damaged it,

and

the

damager

says

“I am uncertain”

whether it was injured by a rock.

This concludes Rav Pappa’s proof that it is possible to prove from the Mishna that it is not according to Sumakhos, since it is explained in the Mishna that when the claimant is certain and the defendant is uncertain, the one who seeks to take from another bears the burden of proof, whereas according to Sumakhos they divide. And there is no need to establish the Mishna and Sumakhos as referring to a case of certainty and certainty, as Rabbi Hiyya does.

The Gemara wonders: How is it possible to interpret the Mishna in this way

, for does the first clause resemble the latter clause?

Rashi added and explained the depth of the Gemara’s difficulty: Initially, the Gemara challenged Rav Hiyya bar Abba, who established the first clause as referring to certainty and certainty, from the latter clause, which cannot be established in this manner because this contradicts the words of Rabah bar Natan. But if there is indeed a distinction between the interpretation of the first clause and that of the latter clause, what has the Gemara accomplished with its answer? On the contrary, it is possible to establish the first clause as certainty and certainty, according to Rabbi Hiyya, and the latter clause as uncertainty and certainty.

The Gemara replies:

They said:

This is not a refutation, because

certainty and uncertainty, uncertainty and certainty, are one matter,

and it is possible to establish the first clause as certainty and uncertainty and the latter clause as uncertainty and certainty.

But it is impossible to establish the first clause as

certainty and certainty

and the latter clause as

uncertainty and certainty,

because certainty and certainty and uncertainty and certainty

are two matters.

The essential subject: Rabah bar Natan said: “He claimed wheat from him and he admitted to barley; he is exempt.”

The Gemara raises a difficulty:

What does this come to teach us,

Rabah bar Natan? After all,

we learned

it already in the Mishna:

“He claimed wheat from him and he admitted to barley; he is exempt”?

The Gemara resolves:

If it were only from there, I would have said

that what is stated

“he is exempt”

means that he is exempt

from the value of the wheat but obligated for the value of the barley.

He comes to teach us

Rabah bar Natan

that he is completely exempt.

And again the Gemara brings a refutation against Rabah bar Natan from the latter clause of our Mishna:

We learned: “There were two injured parties, one large and one small,”

and there were two damagers, one large and one small. The injured party says: “The large one damaged the large one, and the small one damaged the small one,” while the damager says: “The small one damaged the large one, and the large one [damaged] the small one.”

There were two damagers, an innocuous one and a habituated one, and there were two injured parties, one small and one large. The injured party says: “The habituated one damaged the large one, and the innocuous one damaged the small one,” while the damager says: “The habituated one damaged the small one, and the innocuous one damaged the large one.”

The one who seeks to take from another bears the burden of proof.

And the Gemara infers:

If he did not bring

the injured party does not bring

proof, he takes

at least

as the damager says.

And according to Rabah bar Natan,

why

does the injured party take according to the damager’s admission? The injured party’s claim concerning the goring of the large [or habituated] ox, and the damager’s admission concerning the small [or innocuous] ox, are

like wheat and barley,

so that the defendant is completely exempt, for the claimant admitted to him that he is not claiming from him anything besides what he explicitly said. And the Gemara answers: Indeed so; according to Rabah bar Natan, the injured party takes nothing, and this is the meaning of the Mishna:

He is fit to take

if he brings proof,

and he has nothing

if he has no proof, he takes nothing at all.

There are several approaches to explaining “he is fit to take, and he has nothing.” According to Rashi, the explanation is: If he brings proof, he is fit to take, and without proof he takes nothing. The Shakh raised a difficulty according to the Rosh and the early authorities and the Hazon Ish wrote, based on the reasoning of the Ketzot HaHoshen, that where there is an admission against an admission, the money remains in its presumption of ownership, and the damager’s exemption is due to the injured party’s own admission that he did not claim it from him. If so, even if he had been obligated according to the testimony of the witnesses, the injured party exempted him through his admission, which is greater than a hundred witnesses. And

the Gemara is astonished:

But it was taught:

we find in a beraita in which it is stated explicitly that the injured party collects according to the admission of the damaging party:

“He is paid for the smaller from

the larger, and for the larger from the smaller”?

And the Gemara answers: that beraita is speaking in a case

that

the injured party went ahead and

seized

as the damaging party admitted,

but without seizure, as long as he has not

he has brought proof, he takes nothing.

We learned:

two oxen, of which

one was innocuous and one was forewarned,

injured two oxen, of which one was larger and one smaller.

The injured party says:

your

forewarned ox injured

my ox,

the larger one,

and you must pay the entire value of the larger one,

and

your

innocuous

injured

my ox

the smaller one, and

if

the damaging party says, “No, rather,

my

innocuous one injured

your

larger one,”

and I must pay half its damages,

and

the

forewarned one

injured

the smaller one,

and I will pay the damages of the smaller one.

The one who takes from his fellow bears the proof.

Therefore, he will pay half the value of the larger one and the entire damages of the smaller one.

And the Gemara infers:

if he did not bring

the injured party

proof, he takes as the damaging party said,

for according to his words, the innocuous one gored the larger one, and he will pay half the damages of the larger ox, while his forewarned ox gored the smaller one, and he will pay all the damages of the smaller ox.

But why?

After all, the injured party’s claim and the damaging party’s admission

are like wheat and barley,

for the injured party claimed against him for the forewarned one’s goring his larger ox, and he admitted to him that the innocuous one gored the larger one. Why, then, was the damaging party obligated to pay for the larger one? After all, the injured party admitted that the innocuous one did not gore the larger one, and since he has no proof for his words, he should take nothing for the damage to the larger one?