Bava Kamma 027

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.

4:
We must now turn our attention to the second scenario offered by our present mishnah. An ox belonging to David and another ox belonging to Sam are pursuing a third ox which belongs to Sarah. In the ensuing melee Sarah's ox is badly injured. Sarah has witnesses to what happened so she sues both David and Sam for damages. However, the witnesses, of course, cannot identify which ox it was that actually caused the injury: all they saw were two oxen fighting another. While the court recognizes that either David or Sam should pay up it is not possible to decide which of them should pay up. David can demand that Sam produce proof that it was his (David's) ox that gored Sarah's ox; and, of course, Sam can make the same demand of David. Now the axiomatic rule that we learned from the first scenario comes into play: the onus of proof devolves on the claimant. Neither Sam nor David – nor even Sarah – can offer acceptable proof so, as our mishnah states, they are both excused and Sarah is not able to claim her damages.

5:
However, if both the pursuing oxen belonged to David then David will have to pay up. Even though it is not possible to ascertain which of David's oxen gored Sarah's ox it is possible to determine that the ox belonged to David. In such a case Sarah's claim will be successful. If the status of his two oxen was 'docile' then he will have to pay half-damages from each of them!

6:
We now come to the third scenario offered by our present mishnah. This scenario is a continuation of the previous one and it investigates a situation in which it is possible to identify the attacking ox.

7:
David has two oxen, one large and the other smaller. Sarah's claim is that it was the larger of the two oxen that attacked her ox. David's counter-claim is that it was the smaller of his oxen that did the damage. Our mishnah is dealing with a case in which both of David's oxen are 'docile'. in BK 006 we learned that

[The owner of] a harmless animal must pay half damages from its body [whereas the owner of] a vicious animal must pay full damages from his living area.

In other words if the assailant ox is docile its owner will have to sell the ox in order to pay half-damages because the restitution must come "from its body", whether alive or dead. If the attacking ox is 'vicious' then the full damages must be paid out of the owner's estate.

8:
In our present scenario Sarah's claim is that the larger of David's oxen was the attacker and, if David sells the animal, the sum realized will be sufficient to pay the damages. However, David's claim is that it is the smaller of his animals that caused the injury to Sarah's ox. If he sells this animal the sum realized may not be sufficient to pay the damages. If Sarah can back up her claim with reliable witnesses clearly she will get her damages. But the onus of proof is on her, the claimant.

9:
Let us now address the last scenario offered by our mishnah. It just further complicates the situation described. Not one of Sarah's oxen was injured but two, one large and one smaller. The attacking oxen which belong to David are also two, one large and one small. Sarah's claim is that David's large ox attacked her large ox and his smaller ox attacked her smaller ox. David's counter-claim is the opposite: his smaller ox attacked Sarah's larger ox and his larger ox attacked Sarah's smaller ox. Clearly, all the calculations that we have mentioned previously come into play here too. But in the end Sarah will get nothing unless she can offer reliable proof because "The burden of proof lies on the claimant."

10:
This concludes our study of this mishnah and also our study of Chapter Three. God willing, in our next shiur we shall proceed to study Chapter Four.

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