Babylonian Talmud: Tractate Baba Kamma

Folio 36a

The plaintiff is entitled to get paid [only where he produces evidence to substantiate the claim] but [failing that he] will have nothing at all. But has it not been taught: He will be paid for [the injury done to] the little one in accordance with the regulations applying to Mu'ad and for [the injury done to] the big one out of the body of the Tam? — Only where he had already seized them.

BUT WHERE BOTH OF THE [PURSUING] OXEN BELONGED TO THE SAME OWNER, LIABILITY WILL ATTACH TO BOTH OF THEM. Raba of Parazika¹  said to R. Ashi: It can be concluded from this that where oxen in the state of Tam [belonging to the same owner] did damage, the plaintiff has the option to distrain either on the one or the other! — [No, replied R. Ashi, for] we are dealing here [in the Mishnah] with a case where they were Mu'ad.²  If where they were Mu'ad how do you explain the concluding clause: WHERE, HOWEVER, ONE [OF THE OXEN] WAS BIG AND THE OTHER LITTLE AND THE CLAIMANT MAINTAINS THAT THE BIG ONE DID THE DAMAGE WHILE THE DEFENDANT PLEADS 'NOT SO, FOR IT WAS THE LITTLE ONE THAT DID THE DAMAGE' THE BURDEN OF PROOF FALLS ON THE CLAIMANT. For indeed where they were Mu'ad what difference could there be [whether the big one or the little one did the damage] since at all events he has to pay the full value of the ox? — He thereupon said to him: The concluding clause presents a case where they were Tam, though the opening clause deals with a case where the oxen were Mu'ad. Said R. Aha the Elder to R. Ashi: If the commencing clause deals with a case where the oxen were Mu'ad,²  what is the meaning of 'LIABILITY WILL ATTACH TO BOTH OF THEM'? Should not the text run, 'The owner will be liable'? Again, what is the meaning of 'BOTH OF THEM'? — [The commencing clause also] must therefore deal with a case where the oxen were Tam, and the ruling stated follows the view of R. Akiba, that plaintiff and defendant become the owners in common [of the attacking ox].³  Now this is so where 'BOTH OF THEM' [the oxen] are with the owner, in which case he cannot possibly shift the claim [from one to the other].⁴  But if 'BOTH OF THEM' are not with him he may plead,⁵  'Go and produce evidence that it was this ox [which is still with me]⁶  that did the damage, and then I will pay you.'

CHAPTER IV

MISHNAH. IF A [TAM] OX HAS GORED FOUR OR FIVE OXEN ONE AFTER THE OTHER, COMPENSATION SHOULD IN THE FIRST INSTANCE BE MADE [OUT OF THE BODY OF THE OX] FOR THE LAST OFFENCE. SHOULD THERE BE A SURPLUS,⁷  COMPENSATION IS TO BE PAID ALSO FOR THE PENULTIMATE OFFENCE; SHOULD THERE STILL BE A SURPLUS, COMPENSATION IS TO BE MADE TO THE ONE BEFORE; THE LATER THE LIABILITY THE PRIOR THE CLAIM.⁸  THIS IS THE OPINION OF R. MEIR. R. SIMEON SAYS: IF AN OX OF THE VALUE OF TWO HUNDRED [ZUZ] HAS GORED AN OX OF THE SAME VALUE OF TWO HUNDRED [ZUZ] AND THE CARCASS HAS NO VALUE AT ALL, THE PLAINTIFF WILL GET A HUNDRED ZUZ AND THE DEFENDANT WILL GET A HUNDRED ZUZ [OUT OF THE BODY OF THE OX THAT DID THE DAMAGE].⁹  SHOULD THE SAME OX HAVE GORED ANOTHER OX OF THE VALUE OF TWO HUNDRED [ZUZ], THE SECOND CLAIMANT WILL GET A HUNDRED ZUZ, WHILE THE FORMER CLAIMANT WILL GET ONLY FIFTY ZUZ¹⁰  AND THE DEFENDANT WILL HAVE FIFTY ZUZ [IN THE BODY OF HIS OX].¹¹  SHOULD THE OX HAVE GORED YET ANOTHER OX OF THE VALUE OF TWO HUNDRED [ZUZ], THE THIRD CLAIMANT WILL GET A HUNDRED [ZUZ] WHILE THE SECOND WILL GET ONLY FIFTY [ZUZ]¹⁰  AND THE FIRST TWO PARTIES¹²  WILL HAVE A GOLD DENAR¹³  [EACH IN THE BODY OF THE OX THAT DID THE DAMAGE].¹¹

GEMARA. Who is the author of our Mishnah? It is in accordance neither with the view of R. Ishmael nor with that of R. Akiba!¹⁴  For if it is in accordance with R. Ishmael, who maintains that they [the claimants of damages] are like any other creditors, how can it be said that THE LATER THE LIABILITY THE PRIOR THE CLAIM? Should it not be, the earlier the liability the prior the claim?¹⁵  If, on the other hand, it is in accordance with R. Akiba who maintains that the ox becomes the common property [of the plaintiff and the defendant], how can it be said that, IN THE CASE OF THERE BEING A SURPLUS¹⁶

1. [Identified with Faransag, near Bagdad, v. Obermeyer, op. cit., p. 269.]
2. In which case the whole estate of the defendant can be distrained upon for the payment of damages; supra p. 73.
3. Cf. supra p 181.
4. So that there is no warrant for Raba of Parazika's inference.
5. Against the plaintiff.
6. And not the other ox that has been lost.
7. In the body of the ox.
8. Lit., 'the later always profits' as it is he who has the right of priority.
9. As explained supra pp. 187-8.
10. For the reason v. Gemara, infra p. 203.
11. As the defendant and the first claimant became the owners of the ox in common.
12. I.e., the defendant and the first claimant.
13. I.e., twenty-five zuz.
14. For which cf. supra p. 181.
15. As is usually the case with other creditors: v. p. 185.
16. V.p. 201, n. 1.

COMPENSATION WILL BE MADE FOR THE PENULTIMATE OFFENCE? Should it not be 'Compensation will be made [proportionately] for each offence'? — Raba replied: The Mishnah is indeed in accordance with R. Ishmael, who holds that claimants [of damages] are like any other creditors; and as to your objection to the statement 'THE LATER THE LIABILITY THE PRIOR THE CLAIM', which you contend should be 'The earlier the liability the prior the claim', [it can be argued] that we deal here with a case where each plaintiff has [in turn] seized the goring ox for the purpose of getting paid [the amount due to him] out of its body, in which case each has in turn acquired [in respect of the ox] the status of a paid bailee, liable for subsequent damages done by it.¹  But if so, why does it say. SHOULD THERE BE A SURPLUS COMPENSATION IS TO BE PAID ALSO FOR THE PENULTIMATE OFFENCE? Should it not be: 'The surplus will revert to the owner'?²  — Rabina therefore said: The meaning is this: Should there be an excess in the damage done to him³  over that done to the subsequent plaintiff, the amount of the difference will revert to the plaintiff in respect of the preceding damage.⁴  So too, when Rabin returned [from Eretz Yisrael] he stated on behalf of R. Johanan that it was for the failure [to carry out their duty] as bailees that liability was incurred [by the earlier plaintiffs to the later].

How then have you explained the Mishnah? As being in accordance with R. Ishmael! If so, what of the next clause: R. SIMEON SAYS: WHERE AN OX OF THE VALUE OF TWO HUNDRED [ZUZ] HAS GORED AN OX OF THE SAME VALUE OF TWO HUNDRED [ZUZ] AND THE CARCASS HAD NO VALUE AT ALL, THE PLAINTIFF WILL GET A HUNDRED ZUZ AND THE DEFENDANT WILL SIMILARLY GET A HUNDRED ZUZ [OUT OF THE BODY OF THE OX THAT DID THE DAMAGE]. SHOULD THE SAME OX HAVE GORED ANOTHER OX OF THE VALUE OF TWO HUNDRED [ZUZ], THE SECOND CLAIMANT WILL GET A HUNDRED ZUZ, WHILE THE FORMER CLAIMANT WILL GET ONLY FIFTY ZUZ, AND THE DEFENDANT WILL HAVE FIFTY ZUZ [IN THE BODY OF THE OX]. SHOULD THE OX HAVE GORED YET ANOTHER OX OF THE VALUE OF TWO HUNDRED [ZUZ], THE THIRD PLAINTIFF WILL GET A HUNDRED [ZUZ], WHILE THE SECOND PLAINTIFF WILL GET FIFTY [ZUZ] AND THE FIRST TWO PARTIES WILL HAVE A GOLD DENAR [EACH IN THE BODY OF THE OX THAT DID THE DAMAGE]. This brings us back [does it not] to the view of R. Akiba, who maintains that the ox becomes the common property [of the plaintiff and the defendant].⁵  Will then the first clause be in accordance with R. Ishmael and the second clause in accordance with R. Akiba? — That is so, since even Samuel said to Rab Judah, 'Shinena,⁶  leave this Mishnah alone⁷  and accept my explanation. that its first clause is [in accordance with] R. Ishmael and its second clause [in accordance with] R. Akiba.' (It was also stated that R. Johanan said: An actual case in which they would differ is where the plaintiff consecrates the goring ox [to the Temple].)⁸

We have learnt elsewhere:⁹  If a man boxes another man's ear, he has to give him a sela'¹⁰  [in compensation]. R. Judah in the name of R. Jose the Galilean says: A hundred zuz. A certain man having [been summoned for] boxing another man's ear, R. Tobiah b. Mattena sent an inquiry to R. Joseph, as to whether a Tyrian sela'¹¹  is meant in the Mishnah¹²  or merely a sela' of [this] country.¹³  He sent back a reply: You have learnt it: AND THE FIRST TWO PARTIES WILL HAVE A GOLD DENAR [EACH]. Now, should you assume that the Tanna is calculating by the sela'¹³  of [this] country, [we may ask,] why does he not continue the division by introducing a further case where the amount [left for the first two] will come down to twelve [zuz] and one sela'?¹⁴  To which R. Tobiah replied: Has then the Tanna to string out cases like a peddler?¹⁵  What, however, is the solution?¹⁶  — The solution was gathered from the statement made by Rab Judah on behalf of Rab:¹⁷  'Wherever money¹⁸  is mentioned in the Torah, the reference is to Tyrian money, but wherever it occurs in the words of the Rabbis it means local¹⁹  money.' The plaintiff upon hearing that said to the judge: 'Since it will [only] amount to half a zuz,¹²  I do not want it; let him give it to the poor.' Later, however, he said; 'Let him give it to me, as I will go and obtain a cure for myself with it.' But R. Joseph said to him: The poor have already acquired a title to it, for though the poor were not present here, we [in the Court, always] act as the agents²⁰  of the poor, as Rab Judah said on behalf of Samuel:²¹  Orphans

1. As supra p. 57, and infra p. 255.
2. Since it is not the owner but the claimant in regard to the penultimate offence who has to he liable in respect of the last offence.
3. I.e., to the penultimate plaintiff.
4. As e.g. where an ox of the value of a hundred zuz gored successively the ox of A the ox of B and the ox of C, and the damages amount to fifty, thirty and twenty zuz respectively, C will be paid the sum of twenty, B only ten, which is the difference between the compensation due to him and that due from him to C, and A will get twenty, which again is the difference between the compensation due to him from the owner (of the ox that did the damage) and that owing from him to B. All the payments together, which are twenty to A, ten to B and twenty to C, make only fifty, so that the balance of the value of the ox will go to its owner.
5. For if otherwise, why should the first two parties (the owner and the first claimant) always be treated alike?
6. Cf. supra p. 60, n. 2.
7. And do not try to make it self-consistent.
8. V. supra p. 181. [This bracketed passage is to be deleted with Rashi, v. D.S. a.l.]
9. Infra p. 520
10. A Palestinian coin, v. Glos.
11. Four zuz, v. infra p. 521, n. 6.
12. As stated by the anonymous view.
13. Half a zuz.
14. I.e. where the last claimant will have a maneh, the next fifty zuz, the rest one gold denar, and the first claimant and the owner 12 zuz and one sela' each.
15. Who cries the whole list of his wares. Cf. Git. 33a.
16. As to the exact meaning of sela'.
17. Cf. Kid. 11b and Bek. 50b.
18. [Lit., 'silver'. The market value of silver coinage was determined by Tyre, v. Krauss, op. cit., II, 405]
19. Lit., 'the country'.
20. Lit., 'hand'.
21. Git. 37a.