Bava Kamma Chapter Three Mishnah Eleven

 

Introduction

The final mishnah of the third chapter is concerned with an extremely important principle in Jewish law, that the burden of proof is on the one who wishes to exact compensation.  In terms of modern law this means that the plaintiff must bring positive proof that the defendant owes him money in order for the court to find in his favor.  In absence of positive proof, the defendant will be found exempt.

We will explain each clause independently.  As you read the mishnah notice how the mishnah begins with simple cases and proceeds to the complicated cases. The mishnah is a didactic text:  once you learn the principles you can move onto more complicated problems.

 

 

Mishnah

1)                     If an ox was pursuing another ox and [the latter ox] was injured: 

a)                                           this one claims “Your ox caused the injury,

b)                                          and this one claims “No, it was injured by a rock.”

c)                                           on the one who wishes to exact compensation lies the burden of proof.

2)                     If two oxen were pursuing a third ox:

a)                                           this one claims “Your ox caused the injury”,

b)                                          and this one claims “Your ox caused the injury”,

c)                                           they are both exempt.

d)                                          However, if they were both owned by one man, they are both obligated.

3)                     If one was big and was small:

i)                                                       the [owner] of injured [ox] says that “The large one caused the injury”,

ii)                                                      and the [owner] of the injuring [ox] says, “The small one caused the injury”,

b)                                          [or] if one was a harmless ox (tam) and one was an attested danger (muad)

i)                                                       the [owner] of the injured ox says, “The [ox which is an] attested danger caused the injury,

ii)                                                      and the owner of the injuring ox says, “The [ox which is] harmless caused the injury”,

c)                                           on the one who wishes to exact compensation lies the burden of proof.

4)                     If two oxen were injured, one big and one small, and two oxen caused the injury, one big and one small:

i)                                                       [the owner] of the injured oxen says, “The big ox injured the big ox and small ox injured the small ox,”

ii)                                                      and the [owner] of the injuring oxen says, “The small ox injured the big ox and the big ox injured the small ox”;

b)                                          [or] if one was harmless and one was an attested danger:

i)                                                       the [owner] of the injured oxen says, “The [ox which is an] attested danger injured the big ox, and the harmless [ox] injured the small ox”,

ii)                                                      the owner of injuring oxen says, “No rather the harmless [ox] injured the large ox and the [ox which is an] attested danger injured the small ox”,

c)                                           on the one who wishes to exact compensation lies the burden of proof.

 

Explanation

This entire lengthy mishnah is based on one principle, that the burden of proof lies on the pursuant.

·                      Section one deals with the simple case of one ox causing injury to another ox.  The owner of the injured ox must bring proof that his ox was injured by the other ox and not by a rock.  Since the burden of proof lies on him, without proof he will not be able to collect damages.

·                      Section two deals with the case of two oxen chasing after one ox.  It is clear that one of the two oxen caused the injury but it is unclear which one.  Each of the independent owners of the two pursuing oxen claims that the other ox caused the injury.  Since the owner of the injured ox cannot prove which ox caused the injury, he can’t collect damages from either.  However, if both of the pursuing oxen were owned by the same person, he is liable.

·                      Section three continues to deal with the situation of two potentially injuring oxen.  This time we learn that one of the two was a large, probably expensive ox, and the other was small.  They were both harmless oxen, and therefore we are dealing with payment of half damages.  It is in the owner of the injured ox’s best interest that the larger ox caused the damage, since when a harmless ox injures the damages paid can be no greater than the worth of the injuring ox.  Take for example the case where a large ox was worth 500 and the small ox 100 and the damages were 250.  The owner of the damaged ox would like to collect 125, half damages. If the small ox caused the injury the most he could recover is 100, the value of the small ox.  However, if the owner of the large ox caused the injury, he can recover the full 125.  In our mishnah there is a dispute over which animal caused the injury, and as usual the burden of proof lies on the plaintiff.

·                      In the second half of section three instead of one of the potentially injuring oxen being large and the other being small, one is a harmless ox, which only pays half damages, and one is an attested danger which pays full damages.  Obviously it is in the best interests of the owner of the injured ox that the attested danger caused the damage, thereby allowing him to recover full damages.  Again the burden of proof lies on the plaintiff.

·                      Section four further complicates our scenario.  This time two oxen caused injury to two oxen. However, the principles are all similar to the cases in section three.  The owner of the injured oxen would like to claim that the large ox injured the large ox or that the attested danger ox injured his large ox, and the owner of the injuring oxen claims the opposite.  As expected, the mishnah again declares that the burden of proof lies on the plaintiff.

 

Questions for Further Thought:

·                      According to section two clause d, if a person owns two oxen and we are positive that one of them caused the damage but we don’t know which one, that per
son is obligated.  Why might you have thought that he would be exempt?

·                      In section three, when the plaintiff cannot prove that the larger ox injured, would he still be able to recover damages from the smaller ox?  Why or why not?

·                      In the explanation we only briefly explained section four. Try to reason out every detail more carefully.  The principles should be clear from the previous sections.

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