Bava Kamma 35b (לה:) — the Talmud in English

Both are exempt,

because the claimant must produce proof as to which ox was the damaging ox.

3.

If both

of the pursuing oxen belonged

to one person,

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

both are liable;

the injured party collects half the damages from the bodies of both oxen. 4. If the two oxen belonging to one person were not equal in size, but

one

of them was

large,

and it was sufficient to pay half the damages,

while one was small

and was insufficient to pay half the damages, and it is not known which was the goring ox.

The injured party says,

the

large

ox

caused the damage

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

while

if

the damager says, “No, rather,

the

small ox caused the damage

to your ox, and you should collect your debt from it.

The injured party must produce proof that the large ox caused the damage,

because the burden of proof rests upon the one who seeks to extract payment from another.

5. If the two pursuing oxen were small [so that together they were insufficient to pay half the damages caused by a large ox], but

one

of them was a

tam

whose payment is collected from its body,

and one was a muad,

whose owner pays from the aliya, and it is not known which one gored.

The injured party says

the

muad ox caused the damage

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

But if the damager says, “No, rather,

the

tam ox caused the damage

to your ox, and you may collect from its body whatever it contains, while you must forfeit the remainder.

The injured party must prove that the muad gored his ox, because

the burden of proof rests upon the one who seeks to extract payment from another.

6.

If

the injured

oxen were two, one

of them

large, and

the

other small. And

so too, the damaging

oxen were two, one

of them

large,

sufficient to pay half the damages,

and

the

other small. [The damager’s oxen belonged to one person, and the injured oxen to another.]

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

The injured party says,

your

large ox caused damage to

my

large ox, and

your

small ox

caused damage

to

my

small ox;

therefore, I can collect half the damages caused to my large ox from your large ox, and half the damages caused to my small ox from your small ox.

But

if

the damager says, “No, rather,

my

small

ox caused damage

to

your

large ox, and

my

large

ox caused damage

to

your

small ox,

then you will have to collect the damages for your large ox from the small ox, which is insufficient to pay half the damages caused to your large ox, while you can collect the damages for your small ox from my large ox.

The injured party must produce proof of his claim.

7. Two small oxen [which are insufficient to pay half the damages caused by a large ox] were pursuing two oxen, one large and the other small. But among the pursuing oxen,

one

of them was a

tam, and one

of them was a

muad.

The injured party says,

your

muad caused damage to

my

large ox, and

your

tam

caused damage

to

my

small ox;

therefore, you must pay the value of the large ox from the aliya, and the value of the small ox from the body of the tam.

But

if

the damager says, “No, rather,

my

tam

caused damage

to

your

large ox, and

the

muad

caused damage

to

your

small ox.

Therefore, for the damages to the large ox, I will pay from the body of the small ox whatever it contains, and you will forfeit the remainder up to half the damages; and you may collect the value of the small ox from my tam. The injured party must produce proof of his claim, because

the burden of proof rests upon the one who seeks to extract payment from another.

Gemara:

Rabbi Hiyya bar Abba said: This teaches

that our Mishna proves that

his colleagues disagree with Sumakhos, who said, “In a case of money that is subject to uncertainty, they divide it.”

For the Mishna states that in every case of monetary uncertainty, the burden of proof rests upon the one who seeks to extract payment from another, whereas according to Sumakhos, in every case of monetary uncertainty they divide the money even without proof.

Rabbi Abba bar Memel said to Rabbi Hiyya bar Abba:

But did

Sumakhos say this even when both parties make definite claims,

when each one certainly claims that the law is on his side, so that they divide the money?

Perhaps Sumakhos said that they divide the money only when the claimant makes a definite claim and the defendant says that he is uncertain. In such a case, it is reasonable that the claimant receives half even without proof. But if the injured party denies the claim and says, “I am certain that the matter is not as you claim,” perhaps Sumakhos concedes that the burden of proof rests upon the one who seeks to extract payment from another. If so, it is possible that our Mishna is speaking of a case in which both parties make definite claims and does not disagree with Sumakhos.

He said to him,

Rabbi Hiyya bar Abba:

Yes! Sumakhos said,

“In a case of money that is subject to uncertainty, they divide it,”

even when both parties make definite claims.

If so, the tanna of our Mishna does not follow Sumakhos.

And

the Gemara wondered:

From where

was it obvious to Rabbi Hiyya bar Abba

that the Mishna is speaking of a case in which both parties make definite claims?

The Gemara explains:

For it teaches: “One says, ‘Your ox caused the damage,’ and the other says, ‘No, it did not,’

but rather, it was injured by a rock,”,

which implies that the defendant denies the claimant’s words and says, “It did not happen as you claim”; this is a definite claim.

Rav Pappa challenged this:

Why did Rabbi Hiyya bar Abba need to say that our Mishna is speaking of a case in which both parties make definite claims, and that Sumakhos likewise speaks of such a case, so that our Mishna does not follow Sumakhos? There is no need for this, since the Mishna itself otherwise proves that it does not follow Sumakhos: The Mishna must necessarily be speaking of a case in which one party makes a definite claim and the other is uncertain [as explained below], whereas Sumakhos said that in such a case they divide the money.

For according to Rabbi Hiyya, who interprets our Mishna as involving definite claims by both parties, the following difficulty arises:

From the first clause,

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

definite claims,

we must likewise interpret

the final clause

as involving claims that are

definite on both sides.

Come and hear the final clause [of the first section]: Two tam oxen were pursuing one ox. Among the pursuing oxen,

one was large and one was small. The injured party says, ‘The large one caused the damage,’ while the damager says, ‘No, rather, the small one caused the damage’;

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 similarly, the pursuing oxen were two,

one a tam and one a muad. The injured party says, ‘The muad caused the damage,’ while the damager says, ‘No, rather, the tam caused the damage.’ The burden of proof rests upon the one who seeks to extract payment from another.

This implies:

If the injured party does not bring

proof

of his claim,

of his words,

he collects as the damager stated,

and collects from the small ox and from the tam, despite the fact that the injured party’s claim implies that he admits that the small ox or the tam did not cause damage to his ox. But if we establish that the final clause involves definite claims by both parties,

shall we not say that it constitutes a refutation

of the words of

Rabbah bar Natan, who said, “If one claims wheat from another and the other admits barley, he is exempt,”

because implicit in the claim for wheat is an admission that he does not owe him barley, but only wheat. Therefore, the defendant is completely exempt despite having admitted liability for barley, since the claimant himself admitted that he does not owe him barley; even if the defendant had owed it, the claimant had already waived it. Yet the Mishna states that the injured party, the claimant, says that the large ox or the muad caused the damage, and the other admits that it was the small ox or the tam. The damager’s admission obligates him to pay at least according to his own statement, despite the fact that the injured party’s claim proves that it was specifically the large ox that caused the damage, and not the small ox.

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,

we must still say: Is this not a refutation of Rabba bar Natan,

for according to Rabba bar Natan, even in this case the damager, the defendant, is entirely exempt, since from the injured party’s claim concerning the damager’s large ox that gored his ox, it is evident that he is not claiming the small ox; consequently, the damager’s admission concerning the small ox’s damage need not obligate him, because the injured party has already admitted that he was not damaged by the small ox.

Rather,

you are compelled to say that the latter clause is speaking in a situation

where the injured party says: “It is uncertain”

whether your large ox or your ox that had been forewarned caused the damage to my ox,

while the damager says with certainty

that his small ox, or his ox that was innocuous, caused the damage to the other’s ox.

In this manner, even according to Rabba bar Natan, the defendant damager must pay according to his admission, since initially the injured party’s claim was uncertain—that is, either the small ox or the large ox caused the damage. Consequently, the damager’s admission that his small ox caused the damage was never denied by the injured party, and 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 ox is speaking in a situation in which the

injured party

makes a claim of

uncertainty, while the damager

says

with certainty,

if so,

the first clause as well,

concerning an ox that was pursuing another ox, where it is uncertain whether the pursuer damaged the pursued ox or whether it was injured by striking a rock, must be speaking in the same manner: the

injured party

says

with uncertainty

that your ox caused the damage,

while the damager

says

with certainty

that it was injured by striking a rock.

And

is it possible that

Sumakhos said even in this case

that the injured party’s claim of uncertainty has substance and that they divide the disputed amount?

Since the Mishna had to state that even in this case, the claimant bears the burden of proof, it is evident

that it was necessary to teach us

that the halakha is

not

in accordance with Sumakhos, who maintains that in every case they divide the disputed amount. Surely, in this case it is obvious that the injured party’s claim has no substance sufficient to enable him to extract even half the amount, since he himself is uncertain that his claim is correct. How, then, could Sumakhos maintain that they divide the amount?

The Gemara answers:

No,

there is no necessity to interpret the first and latter clauses as referring to the same circumstances.

The Mishna can therefore be resolved as follows:

The latter clause,

concerning two oxen that pursued one ox, is speaking of an

injured party

who says

with uncertainty

that the large ox caused the damage,

while the damager

says

with certainty

that the small ox caused the damage.

But

the first clause,

concerning an ox that was pursuing another ox, where it is uncertain who caused the damage to the pursued ox—whether the pursuer or whether it was injured by striking a rock—is speaking in a situation in which the

injured party

says

with certainty

that the pursuer damaged it,

while

the

damager

says

with uncertainty

that it was injured by striking a rock.

This concludes Rav Pappa’s proof that it is possible to establish from the Mishna that it is not in accordance with Sumakhos: The Mishna indicates that when the claimant is certain and the defendant is uncertain, the claimant bears the burden of proof, whereas according to Sumakhos they divide the disputed amount. There is no need to establish that the Mishna and Sumakhos are speaking of a case in which both parties are certain, as Rabbi Hiyya does.

The Gemara wonders: How can the Mishna be interpreted in this manner?

But the first clause is not analogous to 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 answers:

They said:

This is not a refutation, because

a certain claim and an uncertain claim, and an uncertain claim and a certain claim, are one matter,

and it is possible to establish the first clause as referring to a certain claim and an uncertain claim, and the latter clause as referring to an uncertain claim and a certain claim.

However, it is impossible to establish the first clause as involving

a certain claim and a certain claim

and the latter clause as involving

an uncertain claim and a certain claim,

because a certain claim and a certain claim, and an uncertain claim and a certain claim,

are two different matters.

The essential passage: Rabba bar Natan said: If one claimed wheat from another and he admitted owing him barley, he is exempt.

The Gemara asks,

What does this teach us?

What is novel in Rabba bar Natan’s statement? After all,

we have already learned

it in the Mishna, where it is already stated: “

If one claimed wheat from another and he admitted owing him barley, he is exempt”?

The Gemara answers:

If it had been stated only there, I would have said

that the meaning of the statement

“he is exempt”

is that he is exempt

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

He teaches us

Rabba bar Natan

that he is entirely exempt.

The Gemara once again raises a difficulty against Rabba bar Natan from the latter clause of our Mishna:

We learned: There were two injured oxen, one large and one small,

and two damaging oxen, one large and one small. The injured party says: The large ox damaged the large one, and the small ox damaged the small one. The damager says: The small ox damaged the large one, and the large ox damaged the small one.

There were two damaging oxen, one innocuous and one forewarned, and two injured oxen, one small and one large. The injured party says: The forewarned ox damaged the large one, and the innocuous ox damaged the small one. The damager says: The forewarned ox damaged the small one, and the innocuous ox damaged the large one.

The claimant bears the burden of proof.

The Gemara infers:

Is it not the case that if he does not bring

the injured party does not bring

proof, he takes

at least what

the damager says?

But according to Rabba bar Natan,

why

should the injured party receive the amount according to the damager’s admission? The injured party’s claim concerning the large ox [or the forewarned ox] and the damager’s admission concerning the small ox [or the innocuous ox]

are like wheat and barley,

and the defendant should be entirely exempt, since the claimant admitted to him that he is not claiming anything from him beyond what he explicitly stated. The Gemara answers: Indeed, according to Rabba bar Natan the injured party receives nothing. This is the meaning of the Mishna: He is

entitled to take

if he brings proof,

but he has nothing

if he has no proof, he receives nothing.

But

the Gemara is astonished:

But was it not taught

in a beraita that explicitly states that the injured party collects in accordance with the admission of the tortfeasor,

“He collects for the smaller one from

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

The Gemara answers: That beraita is speaking of a case

in which

the injured party advanced and

seized

property corresponding to the tortfeasor’s admission,

but without seizure, as long as he has not brought proof, he collects nothing.

If he brings proof, he collects nothing.

We learned:

Two oxen, of which

one was innocuous and one was forewarned,

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

The injured party says:

Your

forewarned ox injured

my

larger

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

and

your

innocuous

ox injured

the

my

smaller one, and

if

the tortfeasor says, “No, rather

my

innocuous ox injured

your

larger one,

and I must pay half its damages,

and

the

forewarned ox

injured

the smaller one,

and I will pay the damages for the smaller one.

The one who seeks to take money from his fellow bears the burden of proof.

Therefore, he pays half the value of the larger one and the full damages for the smaller one.

And the Gemara infers:

If he did not bring

proof, the injured party

takes in accordance with what the tortfeasor said,

for according to his words, the innocuous ox 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 the full damages of the smaller ox.

But why?

The claim of the injured party and the admission of the tortfeasor

are like wheat and barley:

The injured party claimed compensation for the forewarned ox’s goring his larger ox, while the tortfeasor admitted that the innocuous ox gored the larger one. Why, then, is the tortfeasor liable to pay for the larger one? The injured party admitted that the innocuous ox did not gore the larger one, and since he has no proof for his claim, he should collect nothing for the damages to the larger one.