Bava Kamma 026

נושא: BK

BET MIDRASH VIRTUALI

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One ox is pursuing another ox and it was injured. The owner of the attacked ox says, "It was your ox that caused the injury" and the other owner says, "Not so! Your ox was hit by a rock." The burden of proof lies on the claimant.

Two oxen are pursuing another and injury ensued. One owner says, "It was your ox that caused the injury" and the other owner says, "It was your ox that caused the injury." Both are excused. But if both oxen belong to one person they are both liable.

If one ox were large and the other small and the injured party says that it was the large ox that caused the injury but the owner of the malfeasant ox says, "Not so! It was the small one that caused the injury." Or, if one were docile and the other vicious and the injured party says that it was the vicious one that attacked while the owner of the malfeasant ox says, "Not so! It was the docile one that attacked." The burden of proof lies on the claimant.

There are two injured oxen, one large and one small and the attacking oxen are also two, one large and one small. The injured party says, "Your large ox attacked my large ox and your small ox attacked my small ox." But the owner of the attacking oxen says, "Not so! It was the small one that attacked the large one and the large one attacked the small one." Or, one is docile and the other is vicious, and the injured party says, "Your vicious ox attacked my large ox and your docile ox attacked my small ox." But the owner of the attacking oxen says, "Not so! My docile ox attacked your large one and my vicious ox attacked your small ox." The burden of proof lies on the claimant.

1:
This is the last mishnah of Chapter Three. At first glance it seems complicated, but in actual fact it is not. Furthermore, the modern reader may well be asking himself what possible use can there be for us today to learn about the intricacies of what happens when there is a fight between oxen. But, as we shall see, the whole purpose of our present mishnah is to present and explicate a very important axiom in Halakhic jurisprudence.

2:
Four scenarios are presented, and to make it easier for the modern reader to understand the details I have presented them as four separate paragraphs. Furthermore, contrary to my wont heretofore, I have omitted all indications of words and phrases that I have added in the translation in order to make the issues more readily readable – and therefore more readily understandable.

3:
Let us now address the first scenario. David's ox attacks Sam's ox. Sam's ox sustains serious injury. Sam sues David for damages. David's counter claim is that it was not his ox at all that caused the damage; rather, during the fight Sam's ox collided with a boulder and it was because of this violent collision that Sam's ox sustained his injuries. Our mishnah now sets forth a very important axiom in Halakhic Jurisprudence: anyone who claims money from someone else must supply the evidence that will justify the claim. That evidence would usually be the testimony of two eye witnesses (though in cases where loans and such are at issue signed documents and receipts will suffice as reliable evidence to support the claim). The golden rule, therefore, is that the onus of proof devolves on the claimant. In our case, Sam must prove to the court's satisfaction that it was David's ox who caused the injury to his ox. Failing that, there is no case for David to answer.

To be continued.

In BK024 I explained that someone who assaults a parent may not be sued for damages because his very life is in jeopardy. Mark Lehrman has a follow-up question:

If for some technical reason a duly constituted court of law acquitted David of the capital offense, would David then be required to pay monetary damages for the bodily injury he caused to his parents?

I respond:

We discussed in great detail the technicalities of capital punishment in Halakhic Jurisprudence when we studied Tractate Sanhedrin – admittedly many years ago! No Jewish court has tried a capital case now for 1,980 years. But the law remains in place even though it is not possible to carry out the punishment.

In order for a person to be successfully convicted of any capital crime several issues must be established by the court. Those issues include the question of whether the accused intended to do whatever he is accused of doing and whether he was aware of the full consequences of his action. In a capital case, in order to successfully establish malice of forethought and full knowledge of the consequences we require two eye-witnesses. But it is not enough that these witnesses see what happened: they must intervene! They must warn the would-be criminal that he is about to commit a capital crime for which the punishment is death.

If the court is reasonably certain that the accused is guilty but it is not possible to apply the penalty (no witnesses, no warning etc) then the accused is imprisoned in harsh conditions. (See Sanhedrin 9:5.)

It follows that it is most unlikely, even in the heyday of the Halakhic court system, that someone could be successfully prosecuted for assaulting a parent. However, the law is "on the books" and the life of someone who assaults a parent is theoretically in jeopardy. Perhaps today this is even more understandable: there are cases in which an earthly court cannot convict and the matter must be left to a Higher Authority. In a matter of much less consequence we find in the Mishnah [Bava Metzi'a 4:2] that

He who exacted punishment from the generation of the flood and the generation of the dispersal [Genesis 11] will exact punishment from him who does not honour his word.

So, surely, we can assume that He who exacted punishment from the generation of the dispersal will exact punishment from him who assaults his parent. Therefore, it is not possible to sue for damages. (Other avenues of legal recovery are available.)

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