Babylonian Talmud: Tractate Baba Kamma

Folio 35a

so also the owner similarly had no intention to satisfy thereby any need, and yet it is stated THERE WOULD BE NO [CIVIL] LIABILITY AS HE WOULD BE SUBJECT TO A CAPITAL CHARGE?¹  No; it is the act of Cattle, which is placed on the same level as that of the owner himself, to show that just as in the act of the owner there had surely been the intention to satisfy some need, so also in the act of Cattle there must have been the intention to satisfy some need.²  But how is this possible in the case of Cattle? — R. Iwiya replied: The case here supposed is one of an intelligent animal which, owing to an itching in the back, was anxious to burn the barn so that it might roll in the [hot] ashes. But how could we know [of such an intention]? [By seeing that] after the barn had been burnt, the animal actually rolled in the ashes. But could such a thing ever happen? — Yes, as in the case of the ox which had been in the house of R. Papa, and which, having a severe toothache, went into the brewery, where it removed the lid [that covered the beer] and drank beer until it became relieved [of the pain]. The Rabbis, however, argued in the presence of R. Papa: How can you say that [the Mishnah places the act of] Cattle on a level with [the act of] the owner himself? For is it not stated: IF CATTLE HAS BROUGHT INDIGNITY [UPON A HUMAN BEING] THERE IS NO LIABILITY,³  WHEREAS IF THE OWNER CAUSES THE INDIGNITY THERE IS LIABILITY? Now, if we are to put the act of Cattle on a level with that of the owner himself, how are we to find intention [in the case of Cattle]?⁴  — Where, for instance, there was intention to do damage, as stated by the Master⁵  that where there was intention to do damage though no intention to insult, [liability for insult will attach]. Raba, however, suggested that the Mishnah here⁶  deals with a case of inadvertence, [resembling thus Cattle which acts as a rule without any specific purpose] and [the law⁷  was laid down] in accordance with the teaching at the School of Hezekiah. For it was taught at the School of Hezekiah:⁸  [Scripture places in juxtaposition] He that killeth a man … and he that killeth a beast⁹ … [to imply that] just as in the case of killing a beast you can make no distinction whether it was inadvertent or malicious, whether intentional or unintentional, whether by way of coming down or by way of coming up,¹⁰  so as to exempt from pecuniary obligation, but [in all cases] there is pecuniary liability,¹¹  so also in the case of killing man you should make no distinction whether it was inadvertent or malicious, whether intentional or unintentional, whether by way of coming down or by way of coming up so as to impose a pecuniary liability, but [in all cases] there should be exemption from pecuniary obligation.¹²  Said the Rabbis to Raba: How can you assume that the ruling in the Mishnah refers to an inadvertent act?¹³  Is it not stated there [that were the owner to have set fire to a barn on Sabbath there would be no civil liability] AS HE WOULD BE SUBJECT TO A CAPITAL CHARGE?¹⁴  — It only means to say this: Since if he would have committed it maliciously he would have been liable to a capital charge, as, e.g., where he had need of the ashes, there should be exemption [from civil liability] even in such a case as this where he did it inadvertently.¹⁵

MISHNAH. IF AN OX WAS PURSUING AN OTHER'S OX WHICH WAS [AFTERWARDS FOUND TO BE] INJURED, AND THE ONE [PLAINTIFF] SAYS, 'IT WAS YOUR OX THAT DID THE DAMAGE, WHILE THE OTHER PLEADS, 'NOT SO, BUT IT WAS INJURED BY A ROCK [AGAINST WHICH IT HAD BEEN RUBBING ITSELF]',¹⁶  THE BURDEN OF PROOF LIES ON THE CLAIMANT. [SO ALSO] WHERE TWO [OXEN] PURSUED ONE AND THE ONE DEFENDANT ASSERTS, 'IT WAS YOUR OX THAT DID THE DAMAGE', WHILE THE OTHER DEFENDANT ASSERTS, 'IT WAS YOUR OX THAT DID THE DAMAGE',

1. Which would show that setting fire on Sabbath even for purely destructive purposes is a violation of the Sabbath, supporting thus the view of R. Abbahu and contradicting that of R. Johanan.
2. Though with cattle there would really be no legal difference whatsoever whether this was the case or not.
3. V. p. 192, n. 2.
4. Being as it is altogether devoid of the whole conception of insult.
5. Supra p. 141.
6. Which exempts man setting fire on Sabbath from any civil liability involved.
7. Exempting from civil liability in the case of Man.
8. Keth. 35a, 38a; Sanh. 79b and 84b.
9. Lev. XXIV, 21.
10. Which, however, forms a distinction in the case of unintentional manslaughter with reference to the liability to take refuge, for which cf. Mak. 7b.
11. As indeed stated supra p. 136.
12. Even when there is no actual death penalty involved, and likewise in the Mishnah the man setting fire though inadvertently is exempt from all civil liability, so that you cannot infer therefrom that death penalty is attached to setting fire on Sabbath even for destructive purposes. V. supra p. 192. n. 8.
13. In which case the capital punishment could never be applied.
14. V. p. 192, n. 8.
15. On the basis of the teaching of Hezekiah.
16. Denying thus any liability.

NEITHER OF THE DEFENDANTS WILL BE LIABLE. BUT WHERE BOTH OF THE [PURSUING] OXEN BELONGED TO THE SAME OWNER,¹  LIABILITY WILL ATTACH TO BOTH OF THEM. WHERE, HOWEVER, ONE [OF THE OXEN] WAS BIG AND THE OTHER LITTLE¹  AND THE CLAIMANT MAINTAINS THAT THE BIG ONE DID THE DAMAGE,²  WHILE THE DEFENDANT PLEADS, 'NOT SO, FOR IT WAS THE LITTLE ONE THAT DID THE DAMAGE', OR AGAIN WHERE ONE [OX] WAS TAM AND THE OTHER MU'AD AND THE CLAIMANT MAINTAINS THAT THE MU'AD DID THE DAMAGE³  WHILE THE DEFENDANT ASSERTS, 'NOT SO, FOR IT WAS THE TAM THAT DID THE DAMAGE,' THE BURDEN OF PROOF LIES ON THE CLAIMANT. [SO ALSO] WHERE THERE WERE TWO INJURED OXEN, ONE BIG AND ONE LITTLE, SIMILARLY TWO PURSUERS, ONE BIG AND ONE LITTLE, AND THE PLAINTIFF ASSERTS THAT THE BIG ONE INJURED THE BIG ONE AND THE LITTLE ONE THE LITTLE ONE, WHILE THE DEFENDANT CONTENDS, 'NOT SO, FOR [IT WAS] THE LITTLE ONE [THAT INJURED] THE BIG ONE AND THE BIG ONE [THAT INJURED] THE LITTLE ONE'; OR AGAIN WHERE ONE WAS TAM AND THE OTHER MU'AD, AND THE PLAINTIFF MAINTAINS THAT THE MU'AD INJURED THE BIG ONE AND THE TAM THE LITTLE ONE, WHILE THE DEFENDANT PLEADS, 'NOT SO, FOR [IT WAS THE] TAM [THAT INJURED] THE BIG ONE AND THE MU'AD [THAT INJURED] THE LITTLE ONE,' THE BURDEN OF PROOF FALLS ON THE CLAIMANT.

GEMARA. R. Hiyya b. Abba stated: This [Mishnaic ruling]⁴  shows that [in this respect] the colleagues differed from Symmachus who maintained⁵  that money of which the ownership cannot be decided has to be equally divided [between the two parties]. Said R. Abba b. Memel to R. Hiyya b. Abba: Did Symmachus maintain his view even where the defendant was as positive as the claimant?⁶  — He replied: Yes, Symmachus maintained his view even where the defendant was as positive as the claimant. But [even if you assume otherwise],⁷  how do you know that the Mishnah is here dealing with a case where the defendant was as positive as the claimant?⁸  — Because it says, THE PLAINTIFF STATES 'IT WAS YOUR OX THAT DID THE DAMAGE', WHILE THE DEFENDANT PLEADS 'NOT SO…'⁹  R. Papa, however, demurred to this, saying: If in the case presented in the opening clause the defendant was as positive as the claimant, we must suppose that in the case presented in the concluding clause the defendant was similarly as positive as the claimant. [Now,] read the concluding clause; WHERE, HOWEVER, ONE OX WAS BIG AND THE OTHER LITTLE, AND THE PLAINTIFF ASSERTS THAT THE BIG ONE DID THE DAMAGE WHILE THE DEFENDANT PLEADS 'NOT SO, FOR IT WAS THE LITTLE ONE THAT DID THE DAMAGE'; OR AGAIN WHERE ONE OX WAS TAM AND THE OTHER MU'AD, AND THE CLAIMANT MAINTAINS THAT THE MU'AD DID THE DAMAGE, WHILE THE DEFENDANT PLEADS, 'NOT SO, FOR IT WAS THE TAM THAT DID THE DAMAGE', THE BURDEN OF PROOF IS ON THE CLAIMANT. [Now this implies, does it not, that] where he does not produce evidence he will get paid in accordance with the pleading of the defendant. May it now not be argued that this [ruling] is contrary to the view of Rabbah b. Nathan, who said that where the plaintiff claims wheat and the defendant admits barley, he is not liable [for either of them]?¹⁰  — You conclude then that the Mishnah deals with a case where one party was certain and the other doubtful.¹¹  Which then was certain and which doubtful? It could hardly be suggested that it was the plaintiff who was certain, and the defendant who was doubtful, for would this still not be contrary to the view of Rabbah b. Nathan?¹²  It would therefore seem that it was the plaintiff who was doubtful¹¹  and the defendant certain. And if the concluding clause deals with a case where the plaintiff was doubtful and the defendant certain, we should suppose that the opening clause¹³  likewise deals with a case where the plaintiff was doubtful and the defendant certain. But could Symmachus indeed have applied his principle even to such a case,¹⁴  that the Mishnah thought fit to let us know that this view ought not to be accepted? — [Hence it must be said:] No; but that the concluding clause [deals with a case where] the plaintiff was doubtful and the defendant certain, and the opening clause¹³  [presents a case where it was] the plaintiff who was certain and the defendant doubtful.¹⁵  But [even in that case] the opening clause is not co-ordinate with the concluding clause?¹⁶  — I can reply that [a case where the plaintiff is] certain and [the defendant] doubtful¹⁷  and [a case where the claimant is] doubtful and [the defendant] certain¹⁸  are co-ordinate¹⁹  whereas [a case where the claimant is] certain and [the defendant also] certain is not co-ordinate with [a case where the claimant is] doubtful and [the defendant] certain.²⁰

The above text states: 'Rabbah b. Nathan said: Where the plaintiff claimed wheat and the defendant admitted barley, he is not liable [for either of them].'²¹  What does this tell us? Have we not already learnt [in a Mishnah]: where the plaintiff claimed wheat and the defendant admitted barley he is not liable?²²  If we had only [the Mishnah] there²²  to go by, I might have argued that the exemption was only from the value of the wheat,²³  while there would still be liability for the value of barley;²⁴  we are therefore told by Rabbah b. Nathan that the exemption is complete.

We have learnt: WHERE THERE WERE TWO INJURED OXEN, ONE BIG AND THE OTHER LITTLE etc. [Now this implies that] where he does not produce evidence he will get paid in accordance with the pleading of the defendant. But why not apply here [the principle of complete exemption laid down in the case of] wheat and barley? — The plaintiff²⁵  is entitled to get paid [only where he produces evidence to substantiate the claim], but will have nothing at all [where he fails to do so]. But has it not been taught; He will be paid for [the injury done to] the little one out of the body of the big and for [the injury done to] the big one out of the body of the little one? — Only where he had already seized them.²⁶  We have learnt: IF ONE WAS TAM AND THE OTHER MU'AD, AND THE PLAINTIFF CLAIMS THAT THE MU'AD INJURED THE BIG ONE²⁷  AND THE TAM THE LITTLE ONE WHILE THE DEFENDANT PLEADS, 'NOT SO, FOR [IT WAS THE] TAM [THAT INJURED] THE BIG ONE AND THE MU'AD [THAT INJURED] THE LITTLE ONE', THE BURDEN OF PROOF FALLS ON THE CLAIMANT. [Now this implies that] where he does not produce evidence he will get paid in accordance with the pleading of the plaintiff. But why should [the principle of complete exemption laid down in the case of] wheat and barley not be applied here? —

1. And were in the state of Tam, in which case the half-damages are paid only out of the body of the ox that did the damage, as supra p. 73.
2. And the body of the big one should secure the payment of the half damages.
3. And the compensation should thus be made in full.
4. That it is the claimant on whom falls the onus probandi.
5. Infra p. 262 and B.M. 2b, 6a, 98b, 100a; B.B. 141a.
6. In which case not the defendant but only the Court is in doubt.
7. And suggest that where the defendant has been positive even Symmachus admits that the claimant will get nothing unless by proving his case.
8. For in the cases dealt with in the Mishnah the defendant is usually unable to speak positively, as in most cases he was not present at the place when the alleged damage was done; cf. also Tosaf. a.l.
9. Which is apparently a definite defence.
10. For the claim of wheat has been repudiated by the defendant while the claim for barley admitted by him has tacitly been dispensed with by the plaintiff. The very same thing could be argued in the case of the Mishnah quoted above, where the claim was made in respect of the big one or the Mu'ad, and the defence admitted the little one or the Tam respectively.
11. In which case the argument contained in the preceding note could no more be maintained.
12. For surely the plaintiff, by his definite claim in respect of the big one or the Mu'ad, has tacitly waived his claim in respect of the little one or the Tam respectively.
13. Where the defendant pleads that 'the pursued ox was injured by a rock…'.
14. Which is really an absurdity, to maintain that a plaintiff pleading mere supposition against a defendant submitting a definite denial should in the absence of any evidence be entitled to any payment whatsoever.
15. [How then could R. Hiyya maintain that our Mishnah deals with a case where both were certain in their pleas.]
16. [If so, what is the objection of R. Papa to R. Hiyya's statement, since even on his view there is a lack of co-ordination between these two clauses in the Mishnah.]
17. As in the case dealt with in the commencing clause.
18. Which is the case in the concluding clause.
19. Lit., 'are one thing'.
20. R. Papa was therefore loth to explain the commencing clause as dealing with a case where the defence as well as the claim was put forward on a certainty, but preferred to explain it as presenting a law-suit where, though the claim had been put forward positively, the defence was urged tentatively.
21. V. p. 197. n. 2.
22. Shebu. 38b.
23. Which was denied by the defendant.
24. Admitted by the defendant.
25. In the case of the oxen.
26. In which case the principle of complete exemption maintained by Rabbah b. Nathan apparently does not apply.
27. V. p. 196. n. 1.