בבא קמא דף לה

אף הוא נמי דלא קבעי ליה; וקתני: פטור – מפני שהוא נדון בנפשו!

so too, in the case where he set the fire, it is presumably a case where he does not need the ashes. And nevertheless, the mishna teaches that he is exempt because he is sentenced to death. Apparently, one who lights a fire on Shabbat is liable even if he does not need the ashes, contrary to the opinion of Rabbi Yoḥanan.

לא; שורו דומיא דידיה – מה הוא דקבעי ליה, אף שורו דקבעי ליה.

The Gemara rejects this proof: No, the comparison is the other way around; the case where his ox set the fire is similar to the case where he set the fire. Just as the case where he is liable for lighting a fire on Shabbat is one where he needs the ashes, so too, the case of his ox setting fire to the haystack is one where it needs the ashes.

שורו היכי משכחת לה? אמר ליה רב אויא: הכא במאי עסקינן – בשור פקח שעלתה לו נשיכה בגבו, וקא בעי למקלייה ואיגנדר בקוטמא.

The Gemara asks: In the case where his ox set the fire, how can you find these circumstances, where it did so because it needed the ashes? Rav Avya said to him: Here we are dealing with an intelligent ox that was bitten on its back and wants to burn down the haystack and then roll around [iggandar] in the ashes in order to heal the bite.

ומנא ידעינן? דלבתר דקלייה קמגנדר בקוטמא.

The Gemara asks: And from where do we know that this is the reason that it set the fire? The Gemara answers: Because after the ox burned the haystack, it was rolling around in the ashes.

ומי איכא כי האי גוונא? אין; דההוא תורא דהוה בי רב פפא דהוה כיבין ליה חינכיה, עייל ופתקיה לנזייתא, ושתי שיכרא ואיתסי.

The Gemara asks: And is there really a case like this? The Gemara answers: Yes, as a certain ox that was at the house of Rav Pappa had a toothache. It went inside, and broke the lid of a utensil, and drank the liquor inside and was cured. Evidently there are oxen with this level of intelligence.

אמרו רבנן קמיה דרב פפא: מי מצית אמרת שורו דומיא דידיה?! והא קתני: שורו שבייש – פטור, והוא שבייש – חייב.

The Sages said before Rav Pappa: How can you say that the case involving his ox is similar to the case involving him? But doesn’t the mishna teach: If his ox caused a person humiliation, he is exempt, but if he humiliated someone, he is liable? If the case of his ox is understood to be similar to the case involving him, how can you find a case where the ox intended to humiliate the person? One is liable for humiliating someone only when he intends to do so, and an ox never has intention to humiliate.

שורו דומיא דידיה נתכוון לבייש – היכי משכחת לה?

כגון שנתכוון להזיק. דאמר מר: נתכוון להזיק – אף על פי שלא נתכוון לבייש.

The Gemara answers: It is a case where the ox intended to cause injury. If it was the action of a person, he would be liable for the humiliation he caused as well, as the Master said: In a case where a person intended to cause injury, he is liable for humiliation even if he did not intend to humiliate his victim.

רבא אמר: מתניתין בשוגג,

Rava said a different solution with regard to the difficulty that the mishna poses to the opinion of Rabbi Yoḥanan: The mishna is referring to a case where one lit a fire on Shabbat unintentionally. Although he is not liable to receive the death penalty, nevertheless, since he performed a prohibited action that would carry the death penalty were it to be performed deliberately, he is still exempt from monetary restitution.

וכדתנא דבי חזקיה – דתנא דבי חזקיה: מכה אדם ומכה בהמה;

The Gemara explains: This is in accordance with what the school of Ḥizkiyya taught, as the school of Ḥizkiyya taught: The verse states: “And he who kills an animal shall pay for it, and he who kills a man shall be put to death” (Leviticus 24:21), indicating that one who kills a man and one who kills an animal are comparable.

מה מכה בהמה – לא חלקת בה בין שוגג בין מזיד, בין מתכוון לשאין מתכוון, בין דרך ירידה לדרך עלייה, לפוטרו ממון אלא לחייבו ממון; אף מכה

This teaches that just as with regard to one who kills an animal, the Torah did not differentiate between whether he does so unintentionally or whether he does so intentionally, whether advertently or inadvertently, whether by way of descent or by way of ascent, and this was not to exempt him from paying monetary restitution in all these cases but rather to render him liable to pay monetary restitution, as one who kills an animal is liable in any event, similarly, with regard to one who kills a man, do not differentiate between whether he does so intentionally or unintentionally, whether advertently or inadvertently, whether by way of descent or by way of ascent, and this was not to render him liable to pay monetary restitution for the damage he causes in the process of killing him, but rather to exempt him from paying monetary restitution in any event. It is derived from here that one who commits a transgression carrying the death penalty is exempt from paying damages for his action, even if he is not in practice given the death penalty.

אדם – לא תחלוק בו בין שוגג למזיד, בין מתכוון לשאין מתכוון, בין דרך ירידה לדרך עלייה, לחייבו ממון אלא לפוטרו ממון.

אמרו ליה רבנן לרבא: מי מצית מוקמת לה בשוגג? והא ״מפני שנדון בנפשו״ קתני!

The Sages said to Rava: Can you really interpret the mishna as referring to a case where the transgression was unintentional? But doesn’t it teach that the transgressor is exempt because he is sentenced to death, which is only the case if the transgression was intentional?

הכי קאמר: כיון דבמזיד נדון בנפשו, והיכי דמי – דקא בעי לאפרו; השתא בשוגג – פטור.

Rava answered that this is what the mishna is saying: He is exempt, since when this action is performed intentionally, the transgressor is liable to be sentenced to death. And what are the circumstances in which one is liable to receive the death penalty for deliberately lighting a fire on Shabbat? It is a case where he needs the ashes. Therefore, even now, when the transgression was unintentional, he is exempt from paying damages.

מתני׳ שור שהיה רודף אחר שור אחר, והוזק; זה אומר: ״שורך הזיק״, וזה אומר: ״לא כי, אלא בסלע לקה״ – המוציא מחבירו עליו הראיה.

MISHNA: With regard to an ox that was pursuing another ox, and the ox being pursued became injured, but there are no witnesses as to how it was injured, and this one, the owner of the injured ox, says to the owner of the pursuing ox: Your ox injured my ox, and you are liable to pay me damages, and that one, the owner of the pursuing ox, says in response: No; rather, it was hurt by a rock, and I am not liable, then in this case, the burden of proof rests upon the claimant. As long as the owner of the injured ox cannot prove that the injury was inflicted by the pursuing ox, the owner of the pursuing ox is not liable.

היו שנים רודפים אחר אחד, זה אומר: ״שורך הזיק״, וזה אומר: ״שורך הזיק״ –

In a case where two oxen, belonging to two different owners, were pursuing one ox belonging to a third person, and that ox was injured by one of the pursuing oxen, and this one, the owner of one of the pursuing oxen, says to the owner of the other: It was your ox that caused the injury, and that one, the owner of the other pursuing ox, says: No, it was your ox that caused the injury,

שניהם פטורים. אם היו שניהם של איש אחד – שניהם חייבים.

the two of them are exempt, since each of them rejects the claim of the injured party that his ox caused the injury. If both oxen belonged to one person, both are liable, as will be explained in the Gemara.

היה אחד גדול ואחד קטן, הניזק אומר: ״גדול הזיק״, והמזיק אומר: ״לא כי, אלא קטן הזיק״; אחד תם ואחד מועד, הניזק אומר: ״מועד הזיק״, והמזיק אומר: ״לא כי,

If the pursuing oxen both belonged to one person, and were both innocuous, so that restitution is paid exclusively from proceeds of the sale of the belligerent ox, and one was large and the other one small, in this case, if the injured party says that the large ox caused the damage, and he is therefore entitled to receive restitution for half the damage from the value of the large ox, but the one liable for damage says: No; rather, the small ox caused the damage, and half of its value is not sufficient to cover half the damage; or, similarly, in a case where one ox is innocuous and one is forewarned, and the injured party says: The forewarned ox caused the damage, and the injured party is therefore eligible to receive full damages, but the one liable for damage says: No; rather, the innocuous ox caused the damage, in which case he is liable to pay only half the damage; in both of the above cases, the principle is that the burden of proof rests upon the claimant.

אלא תם הזיק״ – המוציא מחבירו עליו הראיה.

היו הניזקין שנים – אחד גדול ואחד קטן, והמזיקין שנים – אחד גדול ואחד קטן; הניזק אומר: ״גדול הזיק את הגדול, וקטן את הקטן״, והמזיק אומר: ״לא כי,

If the injured animals were two oxen, one large and the other one small, and the ones that caused the damage were also two oxen, one large and one small, and the injured party says: The large one injured the large one and the small one injured the small one, and the one liable for damage says: No; rather, the small one injured the large one, in which case, if half the value of the belligerent ox does not cover half the damage, he is not required to pay more, and the large one injured the small one; or, similarly, if one of the belligerent oxen was innocuous and one forewarned, and the injured party says: The forewarned ox injured the large one, and the innocuous ox injured the small one, and the one liable for damage says: No; rather, the innocuous ox injured the large one and the forewarned ox injured the small one; here too, the burden of proof rests upon the claimant.

אלא קטן את הגדול, וגדול את הקטן״; אחד תם ואחד מועד, הניזק אומר: ״מועד הזיק את הגדול, ותם את הקטן״, והמזיק אומר: ״לא כי, אלא תם את הגדול,

ומועד את הקטן״ – המוציא מחבירו עליו הראיה.

גמ׳ אמר רבי חייא בר אבא: [זאת אומרת] חלוקים עליו חביריו על סומכוס, דאמר: ממון המוטל בספק – חולקין.

GEMARA: The mishna rules that in a case where there is uncertainty with regard to whether it was the pursuing ox that caused the injury to the other ox, the burden of proof rests upon the claimant. Rabbi Ḥiyya bar Abba says: That is to say that the colleagues of Sumakhos, who says that property of uncertain ownership is divided, disagree with his opinion.

אמר ליה רבי אבא בר ממל לרבי חייא בר אבא: אמר סומכוס אפילו ברי וברי? אמר ליה: אין, אמר סומכוס אפילו ברי וברי.

Rabbi Abba bar Memel said to Rabbi Ḥiyya bar Abba: Does Sumakhos state this principle even in the case of a certain claim and a certain claim, i.e., where both parties maintain the certainty of their claims, as appears to be the case in the mishna? Rabbi Ḥiyya bar Abba said to him: Yes, Sumakhos says this even in a case of a certain claim and a certain claim.

וממאי דמתניתין בברי וברי הוא? דקתני: זה אומר שורך הזיק, וזה אומר לא כי.

The Gemara asks: And from where is it inferred that the mishna is referring to a case of a certain claim and a certain claim? As it teaches that this one, the owner of the injured ox, says: Your ox injured my ox, and that one, the owner of the pursuing ox, says: No, rather etc., indicating that both make their claims with certainty.

מתקיף לה רב פפא: מדרישא ברי וברי – סיפא נמי ברי וברי;

Rav Pappa objects to this interpretation of the case: From the suggestion that the case in the first clause of the mishna is one where there is a certain claim and a certain claim, it may be inferred that the latter clause, the subsequent clause in the mishna, also is referring to a case where there is a certain claim and a certain claim.

אימא סיפא: היה אחד גדול ואחד קטן, ניזק אומר: ״גדול הזיק״, ומזיק אומר: ״לא כי,

If so, say the latter clause: If one was large and the other one small, and the injured party says that the large ox caused the damage, and the one liable for damage says: No; rather, the small ox caused the damage; or if one ox is innocuous and one is forewarned, and the injured party says: The forewarned ox caused the damage, but the one liable for damage says: No; rather, the innocuous ox caused the damage, the burden of proof rests upon the claimant.

אלא קטן הזיק״; אחד תם ואחד מועד, ניזק אומר: ״מועד הזיק״, והמזיק אומר: ״לא כי, אלא תם הזיק״ – המוציא מחבירו עליו הראיה;

הא לא מייתי ראיה – שקיל כדאמר מזיק; נימא תהוי תיובתא דרבה בר נתן – דאמר: טענו חטים והודה לו בשעורים – פטור?

This indicates that if he does not bring proof, he takes compensation according to what the one liable for damage says. If it is a case where both parties maintain certainty of their claims, let us say that this mishna is a conclusive refutation of the statement of Rabba bar Natan, who says that if one claims that another owes him wheat, which he claims he deposited with him, and the other concedes that he owes him barley, which is less expensive than wheat, he is exempt from any payment, since he did not admit to what was claimed, and what he did admit was not claimed. Similarly, here, the injured party claims that it was the large ox that injured his ox, and the defendant admits that his small ox caused the injury, but not the large ox. His admission does not correspond to the claim. Yet, he is apparently liable to pay according to his admission, contrary to the ruling of Rabba bar Natan.

אלא בברי ושמא.

Rather, this clause must be referring to a case where there is a certain claim and an uncertain claim, i.e., one party maintains certainty of his claim, while the other merely states his claim as a possibility.

דקאמר ברי מאן, דקאמר שמא מאן? אי נימא דקאמר ניזק ברי וקאמר מזיק שמא, אכתי לימא תהוי תיובתא דרבה בר נתן!

The Gemara asks: Who is the one who states a certain claim, and who is the one who states an uncertain claim? If we say that it is the injured party who states with a certain claim that the large ox caused the injury, and it is the one liable for damage who states an uncertain claim that it was the small one, let us still say that the mishna is a conclusive refutation of the opinion of Rabba bar Natan, since the defendant does not admit to the claim of the injured party, and nevertheless he is liable to pay compensation from the small one.

אלא דקאמר ניזק שמא, וקאמר מזיק ברי.

Rather, it must be a case where the injured party states an uncertain claim that it was the large ox that caused the injury, and the one liable for damage states a certain claim that it was the small one. Since the claimant does not contradict the defendant’s admission, the latter is liable to pay the amount that he admitted he owes.

ומדסיפא ניזק שמא ומזיק ברי, רישא נמי ניזק שמא ומזיק ברי;

The Gemara notes: And from the fact that the latter clause of the mishna is referring to a case where the injured party states an uncertain claim and the one liable for damage states a certain claim, it may be inferred that the first clause is also referring to a case where the injured party states an uncertain claim that it was the defendant’s ox that injured his ox, and the one liable for damage states a certain claim that it was injured by a stone. It is not referring to a case of two certain claims as inferred above.

ואמר סומכוס אפילו בהא – דאיצטריך לאשמועינן דלא?!

The Gemara asks: And does Sumakhos state his ruling that the disputed property is divided between the two parties even with regard to this case, where the claimant states an uncertain claim, so that it was necessary for the mishna to teach us that according to the other Rabbis it is not divided? Certainly Sumakhos would concede that in this case the burden of proof rests upon the claimant.

לא; סיפא ניזק שמא ומזיק ברי, רישא ניזק ברי ומזיק שמא.

The Gemara answers: No; although the latter clause is referring to a case where the injured party states an uncertain claim and the one liable for damage states a certain claim, the first clause is referring to a case where the injured party states a certain claim and the one liable for damage states an uncertain claim. It is with regard to this case that the Rabbis disagree with the opinion of Sumakhos that the property is divided.

והא לא דמיא רישא לסיפא!

The Gemara questions this interpretation: But according to this interpretation, the first clause is not similar to the last clause. Why not explain the first clause as referring to a case of two certain claims?

אמרי: ברי ושמא, שמא וברי – חד מילתא היא; ברי וברי, שמא וברי – תרי מילי נינהו.

The Sages said in response: A case of a certain claim and an uncertain claim, and a case of an uncertain claim and a certain claim, are one matter. Therefore, the two clauses are congruent. By contrast, a case of a certain claim and a certain claim, and a case of an uncertain claim and a certain claim, are two matters. Therefore, the first clause of the mishna cannot be referring to a case of two certain claims.

גופא – אמר רבה בר נתן: טענו חטין והודה לו בשעורין – פטור. מאי קא משמע לן? תנינא: טענו חטין והודה לו בשעורין – פטור!

§ The Gemara returns to discuss the matter itself that was mentioned above. Rabba bar Natan says: If one claims that another owes him wheat, and the other concedes that he owes him barley, the latter is exempt from payment. The Gemara asks: What novel element is this teaching us? We already learned it in a mishna: If one claims that another owes him wheat, and the other concedes that he owes him barley, he is exempt (Shevuot 38b).

אי מהתם, הוה אמינא: פטור מדמי חטין, וחייב בדמי שעורין. קא משמע לן דפטור לגמרי.

The Gemara answers: If it had been taught only from there, I would say the mishna means that he is exempt from payment of the value of the wheat but liable to pay the value of the barley, which he conceded that he owes. Therefore, Rabba bar Natan teaches us that the mishna means that he is completely exempt, even from paying for the barley.

תנן: היו הניזקין שנים – אחד גדול ואחד קטן וכו׳. הא לא מייתי ראיה – שקיל כדקאמר מזיק; אמאי? חטים ושעורים נינהו!

The Gemara raises an objection to this statement: We learned in the mishna here that if the injured animals were two oxen, one large and the other one small, and the ones that caused the damage were also two oxen, one large and one small, and the injured party claims that the large one injured the large one, and the small one injured the small one, and the liable party claims that the small one injured the large one, and the large one injured the small one, the burden of proof rests upon the claimant. This indicates that if the injured party does not bring proof for his claim, he takes compensation according to what the one liable for damage says. According to Rabba bar Natan’s statement, why does he receive compensation at all? The case is parallel to the case of wheat and barley, and the defendant should be entirely exempt.

ראוי ליטול – ואין לו.

The Gemara answers: The mishna does not indicate that the injured party receives compensation, rather, that it is fitting for him to take compensation. But in practice he does not receive any compensation.

והתניא: הרי זה משתלם על הקטן מן הגדול, ולגדול מן הקטן!

The Gemara asks: But isn’t it taught in a baraita that the injured party receives payment for his small ox from the liable party’s large ox, and for his large ox from the liable party’s small ox? Evidently he does receive payment.

דתפס.

The Gemara answers: The baraita is referring to a case where the injured party seized the defendant’s ox, in which case the court allows it to remain in his possession, since his taking it was appropriate, although the court cannot compel the defendant to pay him ab initio.

תנן: היה אחד תם ואחד מועד, הניזק אומר: ״מועד הזיק את הגדול, ותם את הקטן״, והמזיק אומר: ״לא כי, אלא תם את הגדול,

The Gemara raises an objection to Rabba bar Natan’s statement from the last clause of the mishna as well: We learned in the mishna that if one of the belligerent oxen was innocuous and the other one was forewarned, and the injured party says: The forewarned ox injured the large one and the innocuous ox injured the small one, and the one liable for damage says: No; rather, the innocuous ox injured the large one and the forewarned ox injured the small one, in this case, the burden of proof rests upon the claimant. This indicates that if he does not bring proof for his claim, he takes compensation according to what the one liable for damage says. Why does he receive compensation at all? The case is parallel to the case of wheat and barley.

ומועד את הקטן״ – המוציא מחבירו עליו הראיה. הא לא מייתי ראיה – שקיל כדקאמר מזיק; ואמאי? חטין ושעורין נינהו!