Torah Community Connections

Week 93 - Tuesday - 4 September 2001

BAVA KAMMA: CHAPTER 3: MISHNAH 11

If an ox was pursuing another ox and was injured, this one says; "Your ox caused the injury," and this one says, "Not so, but it injured by a rock," whoever would take from his fellow, must bring the proof. If two were pursuing one, this one says, "Your ox caused the injury"; and this one says, "Your ox caused the injury," both are exempt. If both of them belonged to one person, both are liable. If one were big and one small, the injured party says, "The big one caused the damage," and the injurer says, "Not so, but the small one caused the damage." If one was a tam and one a mu’ad, the injured party says, "The mu’ad caused the damage," and the injurer says, "Not so, but the tam caused the damage" - whoever would take from his fellow, must bring the proof. If there were two injured, one big and one small, and two injurers, one big and one small, the injured party says, "The big one injured the big one and the small one the small one," and the damager says, "Not so, but the small one the big one, and the big one the small one"; If one was a tam and one a mu’ad, the injured party says, "The mu’ad injured the big one and the tam the small one," and the injurer says, "Not so, but the tam the big one and the mu’ad the small one" - whoever would take from his fellow, must bring the proof.

Kehati

The halakhic basis of our mishnah is the rule, whoever would take from his fellow, must bring the proof.

If an ox - belonging to A - was pursuing another ox - belonging to B - and - the ox belonging to B - was injured, this one - B - says - to A, "Your ox caused the injury - to my ox, and you are obligated to pay damages," and this one - A - says - the matter is - "Not so, but it was injured by a rock" - your ox rubbed against a rock and was injured (Rashi, Bartenura), whoever would take - seeks to take money - from his fellow, must bring the proof - i.e., witnesses to corroborate his claim. B therefore must bring proof that his ox was injured by A's ox; as long as B does not have witnesses, A is not obligated to pay him. According to some commentators, our mishnah teaches that even if there is a basis for the assumption that A's ox injured B's ox, since they saw A's ox chasing B's ox, we nevertheless do not rule that A's ox injured B's ox, even if B claims with certainty (a bari claim), that his ox was injured by A's ox, and A raises only a possible alternative (a shema claim), i.e. that this might not be the case, but it was injured by a rock (another mishnah [Ket. 1:6] teaches that the expression "Not so" constitutes a shema claim). We rather rule, whoever would take from his fellow, must bring the proof. We further learn from our mishnah that even if A admits that B's ox injured itself against a rock because his (A's) ox was chasing it, thereby causing the damage, A is nevertheless exempt, thus teaching us that grama b'nezikin a causal factor of damage, is exempt (Nimukei Yosef).

If two - oxen belonging to two people - were pursuing one - ox, e.g., A's ox and B's ox pursued C's ox. Even though there are witnesses to the fact the ox was injured by one of them, but they do not know which of the pursuing oxen caused the damage (Nimukei Yosef), this one - A - says – to B, "Your ox caused the injury" - to C's ox; and this one says - B to A, "Your ox caused the injury," both are exempt - since each of them rejects the claim of C stating, "Bring proof that my ox caused the damage and I will pay."

If both of them - the oxen pursuing B's ox - belonged to one person - A, both are liable - The Gemara explains that this speaks of a case where both oxen are tam, and both are present; since the owner of the tam pays only from its body, our mishnah teaches that B collects his half-damages from between the two oxen, from the body of the lesser of the two, as will be explained below. If, however, one of the oxen is lost, A is exempt from paying him, since he could claim that the lost ox is the one which caused the damage, and the owner of a tam only pays from the body of the ox which caused the damage.

If one - of A's two oxen which pursued B's - were big - and it was worth enough to pay half-damages from its body - and one small - not worth half-damages, the injured party says, "The big one caused the damage - to my ox and it is worth enough to pay me half my damages,"and the injurer says, "Not so, but the small one caused the damage - and take it or its value, and lose the rest”; or If one - A's two oxen which pursued B's ox were - a tam and one a mu’ad, the injured party - B – says - claims, "The mu’ad caused the damage - and you are obligated to pay full damages,"and the injurer - A - says - claims, "Not so, but the tam caused the damage - and I am liable only for half-damages," whoever would take from his fellow, must bring the proof – and as long as he does not bring proof, he cannot collect anything from A. He cannot take even the value of the lesser ox or the damages of the tam which he admitted to him, since one who claims of his fellow wheat and the other admits to barley is exempt from paying even the value of the barley (Shev. 6:3); here also, B claims the larger ox or full damages, and A admits to the lesser ox or half-damages from the body of the tam.

If, however, the injured party seized to the amount of what the injurer admitted to him, we do not take this away from him (Rambam, in his commentary on our mishnah; Bartenura; see also Tosefot Yom Tov). The Gemara explains that if the injured party makes a shema claim, while the damager makes a bari claim, with the claim of the injured party being included in the admission of the damager, then the rule of whoever would take from his fellow, must bring the proof applies, and when the injured party has no proof, the damager at any rate pays in accordance with what he said.

If there were two injured, one big and one small, and two injurers, one big and one small - i.e., A's two oxen (one of which was big and one small), injured B's, two (one of which was big and one small), and we do not know which ox injured which; the injured party says, "The big one injured the big one and the small one the small one" - and each ox is of sufficient value to pay for half of the damages it caused, and the injurer says, "Not so, but the small one the big one, and the big one the small one" - and the small one is not of sufficient value to pay for half of the damage caused to the big ox; or- If one - of A's two oxen were - tam and one mu’ad - and they injured B's two oxen, one of which was big and one small, the injured party says, "The mu’ad injured the big one and the tam the small one" - and A is obligated to pay full damages for the big ox, and half-damages for the small ox, from the body of the tam, and the injurer says, "Not so, but the tam the big one and the mu’ad the small one" - and I am obligated to pay only half of the damage to the big ox, from the body of the tam, and all of the damage to the small one, whoever would take from his fellow, must bring the proof - as was explained above: if he has no proof, the injurer is exempt from paying even what he admitted, but if the injured party seized the amount to which the injurer admitted, this is not taken away from him.

BAVA KAMMA: CHAPTER 4: MISHNAH 1

If an ox gored four or five oxen, one after the other, he pays to the last of them. If there is some excess in it, he gives back to the one before it; and if there is some excess in it, he gives back to the one before that; and the last one profits, this is the view of Rabbi Meir. Rabbi Shimon says, If an ox worth two hundred gored an ox worth two hundred, and the carcass is not worth anything, this one takes a maneh and this one takes a maneh. If it again gored another ox worth two hundred, the last one takes a maneh and the one before it - this one takes fifty zuz and this one takes fifty zuz. If it again gored another ox worth two hundred, the last one takes a maneh, and the one before it, fifty zuz, and the first two, a golden dinar.

Kehati

Our mishnah deals with a shor tam which gored several animals while it was a tam, and the question of how to pay the damages from its body. In order to understand the mishnah, we must first mention the disagreement between Rabbi Yishmael and Rabbi Akiva concerning the obligation to pay half-damages incurred by a tam. Rabbi Yishmael holds that the injured party becomes the creditor of the damager, and the rule that a tam pays from its body teaches that the ox which caused the damage is mortgaged for this debt, and if it is worth less than half of the damage, then the court obligates its owner to pay to the injured party only the monetary value of the ox, and he is permitted to pay his debt with money. According to Rabbi Akiva, on the other hand, the injured party becomes a part owner of the ox, which caused the damage, to the amount of half the damage, and if the ox is only worth half the damage or less, the injured party takes the entire ox (Gemara).

If an ox - a tam - gored four or five oxen, one after the other - and is still a tam, whose owner pays from its body, e.g., if the owner had not been warned before the court, which is a precondition to the animal becoming mu’ad (Ravad; Hameiri; see Rashi, who interprets this differently; see also Tosefot Yom Tov), he pays - half-damages - to the last of them - to the last injured party;

If there is some excess in it - the ox causing the damage, as will be explained below, he gives back to the one before it - the next to last injured party; and if there - is still - some excess in it - the ox which caused the damage, he gives back to the one before that - the second injured party before the last; and the last one profits - the owner of the ox which was injured later has precedence over his fellow in receiving payment of his damages:

This is the view of Rabbi Meir - the Gemara explains that Rabbi Meir agrees with Rabbi Yishmael, who holds that the injured party has the status of creditor, and that in this case the injured party seized the damaging ox, in order to collect from it the debt of half his damages. He therefore becomes a paid custodian for it, since every creditor who seizes a pledge becomes a paid custodian for it, and when the ox leaves his control and causes damage, he (the first injured party) is liable for the damage it causes, while the owner of the ox is exempt. E.g., if A's ox, which was worth 200 zuz, gored B's ox and caused 200 zuz worth of damage to it, and B seized A's ox in order to collect half of his damages from it, i.e., 100 zuz; the ox then gored C's ox, causing 200 zuz damages to it, and C seized it; the ox then gored D's ox, causing 200 zuz worth of damage to it: C pays D 100 zuz, which is half of his damages, while C and B lose their damages. A, the owner of the ox, however, takes his maneh. This is the meaning of our mishnah: "he pays to the last of them" - the last injured party, as was explained above. "If there is some excess in it" -e.g., if half of D's damage was only 30 zuz, leaving 70 zuz to pay half of the damage caused to C, which was 100 zuz, "he gives back" - this excess - "to the one before it" - to C, "and if there is some excess in it" - e.g., C's half-damages also did not come to 100 zuz, but only to 40 zuz, leaving an additional 30 zuz to pay B's half-damages, which came to 100 zuz, "he gives back to the one before that" the 30 zuz are paid to B. Since half of B's damages were 100 zuz, only a total of 100 zuz is distributed among all the injured parties, since the owner of the ox takes back the rest, "and the last one profits," i.e., D, who was the last injured party, takes his entire half-damages, while C, who sustained injury before him, only takes the excess. If there is sufficient money to pay all of C's half-damages, he also takes his entire half-damages, and only what is left is paid to B.

Rabbi Shimon says, If an ox worth two hundred gored - and killed - an ox worth two hundred, and the carcass is not worth anything, this one - the injured party - takes a maneh - 100 zuz - and this one - the owner – takes a maneh - 100 zuz,

If it again gored another ox worth two hundred - e.g., the goring ox belonged to A, it initially gored the ox belonging to B, and then gored C's, the last one - C - takes a maneh and the one - injured - before it - together with the owner - this one - B - takes fifty zuz and this one - A - takes fifty zuz - The Gemara explains that Rabbi Shimon holds the opinion of Rabbi Akiva, who rules that the owner and the injured party become partners in the damaging ox, and both become obligated for the damages. The second injured party accordingly takes 100 zuz, i.e., all his half-damages, and the first injured party and the owner each take 50 zuz, since each one pays half of the payments for damages.

If it again gored another ox worth two hundred - that belonging to D, the last one - D - takes a maneh - which is half of the damage he suffered, from the body of the damaging ox, and the one - injured - before it - C (to whom half of the ox, in the amount of 100 zuz, belongs) takes - fifty zuz - for he participates in the payment of half of D's damage with half of his share, and the first two - A and B, i.e., the owner and the first injured party, each of whose portion is 50 zuz, each take - a golden dinar - which is 25 zuz, for the reason explained above. Rashi and Rambam interpret Rabbi Shimon's statement as referring to a case in which the injured party did not seize the ox, but they hold that if he had seized the ox, even Rabbi Shimon would accept Rabbi Meir’s position that the injured party has become a paid custodian, and he alone is liable for the damage it causes. Tosafot holds that even if the injured party seizes the ox, he does not become a paid custodian over the entire animal; they rather have the status of partners, with each one responsible for guarding his share, and each one therefore participates in paying the damages with half of his portion.

Return to Mishna Yomit Index

Visit the Mishna Yomit Archives