Bava Kamma 36a — the Talmud in English

And here too the Gemara explains:

“Fit to take, but he has none.”

The Gemara raises an objection from an explicit beraita:

“But it was taught:

if the injured party did not bring proof,

he is compensated from the smaller one according to the payment of the mu'ad, and from the larger one according to the payment of the tam,”

so it is clear that without proof he has the right to receive at least the amount admitted by the damager, and we do not say, “Fit to take, but he has none.”

If so, the Gemara's objection to Rabba bar Natan returns. He said: If one claimed wheat from him and he admitted barley, he is exempt even from the value of the barley, whereas in the beraita it is explained that he must pay at least the value of the barley?

The Gemara answers: Actually, if the injured party did not bring proof, he takes nothing, for when one claimed wheat from him and he admitted barley to him, he is exempt even from the value of the barley. Here too, the injured party admitted that the tam did not gore the larger one, while, on the other hand, he did not bring proof that the mu'ad gored the larger one; therefore, he receives nothing.

And the beraita is speaking of

one who seized [the animal].

We learned in the Mishna:

“If both belonged to one person, both are liable.”

Rava of Parzika said to Rav Ashi: “Infer from this,”

it is explicitly stated in our Mishna that when a person has two

tam oxen that caused damage,

one of them damaged another person's ox, but it is not known which one was the damager, and the law of a damaging tam ox is that collection is made from its body.

Thus, when the injured party comes to collect,

“if he wishes, he collects from this one; if he wishes, he collects from that one,”

as is implied by the expression “both are liable,” meaning that both are pledged to him.

A practical consequence is that if one of them is lost, he can collect from the body of the other.

Rav Ashi rejected this: There is no proof from the Mishna, for

here, with what are we dealing? With

two oxen

that are mu'ad.

The law of a mu'ad is that it pays from the superior assets; therefore, both are pledged for collection of the damage, just as the rest of the assets are pledged for payment of the damage. But with tam oxen he collects only from the body of the damager, and he cannot collect from whichever one he wishes.

Rava of Parzika objected:

If they are mu'ad, say the latter clause:

two oxen pursued one ox,

and one was large and one was small, the injured party says:

your

large ox caused damage

to my ox,

and the damager says, “No, rather,

my

small ox caused damage

to your ox.”

“The burden of proof rests upon the claimant,”

and if he does not bring proof, the injured party takes from the body of the small ox his half-damage.

And

if

it is said that the Mishna is speaking

of mu'ad oxen, what benefit is there for him

the injured party whether the large one injured him or the small one? After all, he does not collect at all from the body of the damaging ox, and even if the small one injured him,

ultimately

the damager

must pay the value of a superior ox,

as is the law of the owner of a mu'ad ox that caused damage?

From here it follows that the Mishna is speaking of tam oxen, and the Gemara's proof returns from the expression “both are liable”: concerning the two damaging tam oxen, “if he wishes, he collects from this one; if he wishes, he collects from that one.”

He said to him,

Rav Ashi: Indeed, the latter clause speaks of tam oxen, but there is still no proof from the first clause to support your words, since it is possible to say that the

latter clause

speaks

of tam oxen, and the first clause of mu'ad oxen.

Rav Aha the elder said to Rav Ashi: “If

we interpret the first clause

as concerning mu'ad oxen,

how is the expression “both

are liable”

to be understood? Is not the liability imposed upon the oxen? If so,

it should have said, “the person is liable,”

rather?

Moreover,

there is another difficulty:

what is the meaning of “both”?

Is it not sufficient to say, “they are liable”? The Gemara interprets the Mishna in another manner:

Rather, in fact,

the entire Mishna speaks

of tam oxen.

And

the reason it says that both are liable is that our Mishna is

the view of Rabbi Akiva, who says

that the damager and the injured party

are partners

in the damaging ox, and the injured party has a share in the body of the ox, rather than merely a lien upon it.

For this reason the Mishna stated, “both are liable,” in order to say that the damager is liable to pay only while both of his oxen exist.

And the reason is: when both of them exist, he cannot

the damager

push him away;

the damager cannot say, “The ox that damaged you does not exist,” since, in any event, one of these two certainly damaged him, and he must pay from one of them.

But

if

both of them do not exist,

for example, one of them died,

he can say to him

the damager to the injured party:

“Go, bring proof that this ox damaged you, and I will pay you,”

and as long as the injured party has no proof, the damager is not liable to pay him, since it is possible that the dead ox was the one that became pledged to the injured party.

Therefore it says in the Mishna, “both are liable,” to teach that if both exist, he collects from one of them; but if one died, it is incumbent upon the injured party to prove that the living ox is the one that gored, and if he does not bring proof, the damager is exempt.

We shall return to you, chapter “The One Who Places.”

Mishna:

An ox

that is innocuous, which pays half the damage, and pays it only from its body —

that gored four and five oxen one after the other,

how are the injured parties to collect from the ox?

He shall pay

first

the last of them

his half-damage from the body of the damaging ox, even if the value of his half-damage equals the entire ox, and nothing remains for the injured parties before him to collect—

And if it has—

in the damaging ox—

a surplus,

that the value of the damaging ox was greater than the value of the last half-damage,

he shall return

he shall pay from that surplus

to the

injured party

before him [

the injured party before the last of the injured parties] his half-damage.

And if

after this second payment there still

is in it

in the damaging ox

a surplus, he shall return [

he shall pay]

to the

injured party

before him

his half-damage, and if there is still a surplus in it, he shall pay the preceding injured party—

And the last, last

for the damage

profits.

For he collects first his half-damage without taking into consideration the damages of those before him, while they collect only from the surplus; and likewise the one before the last collects first, and so on.

The words of Rabbi Meir,

and its reasoning will be explained in the Gemara.

Rabbi Shimon says: An ox worth two hundred that gored an ox worth two hundred, and the carcass was worth nothing,

that the value of the damage is two hundred:

This one,

the injured party,

takes

immediately at the time of the damage—as Rabbi Akiva holds, that “the ox shall be designated”—

a maneh

from the damaging ox, which is the value of half its damage.

And this one,

the damager,

takes a maneh.

That is, from now on they are partners in the ox: this one has a value of a maneh in it, and that one has a value of a maneh in it.

And if

it returned

this ox, which belongs to both of them in partnership in equal value,

and gored another ox worth two hundred,

and the rate of the payment is one hundred zuz:

The injured party

last takes a maneh,

which is his half-damage; and this loss is borne by the owners of the ox according to the value each one has in the ox, and therefore:

And the one before him,

that is, the previous injured party, together with the first owner,

this one takes fifty zuz, and that one takes fifty zuz.

For the loss of the damage is borne by both of them equally, because both of them are the owners of the damaging ox equally.

And if

it returned and gored

this ox, half of which belongs to the second injured party, while in its other half the first injured party and the owners are partners,

another ox,

the

worth two hundred,

and the carcass was worth nothing, so the rate of the payment is one hundred zuz:

The

last injured party takes a maneh

from the ox, which is his half-damage. In this loss, the previous injured party, who is a partner in half the ox, bears half the damage payment. But the injured party before him and the owners, each of whom has a proportional share of one quarter of the ox, each bears one quarter of the payment. Therefore:

And the

injured party

before him

takes

fifty zuz,

and it is found that he lost half of the payment he received.

And the first two [

the first injured party and the owners] each take

a gold dinar,

which is worth twenty-five zuz, and it is found that each of them has now lost one quarter of the payment.

Gemara:

We learned in the Mishna: An ox that gored four and five oxen one after the other shall pay the last of them, and if there is a surplus in it, he shall return it to the one before him. And the last, last profits, the words of Rabbi Meir:

And we raise an objection against it:

Whom is the Mishna?

According to whose view does Rabbi Meir hold?

For his words are

not according to Rabbi Yishmael,

who holds “the ox shall be assessed,” and the injured party has only the status of a creditor, with only a lien upon the ox until the court collects it.

And

also

not according to Rabbi Akiva,

who holds “the ox shall be designated,” and he immediately becomes, at the time of the damage, an owner of the ox according to the value of half its damage?!

For

if it is according to Rabbi Yishmael, who says,

that all those injured through the ox are merely in the status of

creditors

they are,

to collect from the ox, but they acquire nothing in the ox immediately, then they do not need to bear the payment of the damage that comes after them, since the ox is not theirs. If so, how did you say that

this “the last, last profits”?! Is the law that the last, last profits? But

“the first, first profits”,

it should have been necessary

for the tan

to say! Namely, we should have said: The first collects, and if there is a surplus in it, the second collects, and so on?!

For we should judge this case like other creditors who come to collect their debt: the one whose debt came first has priority in collection, so it follows that the first, first profits. And

if it is according to Rabbi Akiva, who says: It is a partnership ox,

and each one must bear the payment of the damage according to his proportional share in the ox, since it is also his and he is liable for its damage, then: