Search

Bava Kamma 35

Want to dedicate learning? Get started here:

English
עברית
podcast placeholder

0:00
0:00




podcast placeholder

0:00
0:00




Summary

This week’s learning is sponsored by Michael Fishbane, Eitan Fishbane and Elisha Russ-Fishbane and their families in honor of Mona. “Happy Chanukah, we’re all so proud of you and your devoted commitment to daf yomi.”

The Mishna brings cases comparing situations where an animal and a person may do the same damage but one would be obligated to pay damages and the other would not. If a person burns a field on Shabbat the person is exempt from payment of damages as when one does an action punishable by death, one is exempt from monetary payment. This Mishna raises a question against Rabbi Yochanan’s view that one who burns as a destructive act has not desecrated Shabbat since one is only liable for creative acts performed on Shabbat. Two alternative readings of the Mishna are brought to answer this question. If an ox was chasing another ox and one ox was injured but there are different claims made by each of the owners about whether the damage was caused by the animal or by a rock, or if there were three animals and each owner claims the other’s ox caused the damage, or the owner has two oxen, one large and one small or one tam and one muad, and each owner claims it was a different ox that caused the damage, the burden of proof lies with the one trying to claim the money from the other. Rabbi Chiya bar Abba holds that Sumchus would disagree in these cases and say that the money in question is split between the two sides. The Gemara tries to assess whether the case is where each is confident in their claim (bari) or one is confident and the other is not (shema).

Today’s daily daf tools:

Bava Kamma 35

אַף הוּא נָמֵי דְּלָא קָבָעֵי לֵיהּ; וְקָתָנֵי: פָּטוּר – מִפְּנֵי שֶׁהוּא נִדּוֹן בְּנַפְשׁוֹ!

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.

לֹא; שׁוֹרוֹ דּוּמְיָא דִידֵיהּ – מָה הוּא דְּקָבָעֵי לֵיהּ, אַף שׁוֹרוֹ דְּקָבָעֵי לֵיהּ.

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.

שׁוֹרוֹ הֵיכִי מַשְׁכַּחַתְּ לַהּ? אֲמַר לֵיהּ רַב אַוְיָא: הָכָא בְּמַאי עָסְקִינַן – בְּשׁוֹר פִּקֵּחַ שֶׁעָלְתָה לוֹ נְשִׁיכָה בְּגַבּוֹ, וְקָא בָּעֵי לְמִקְלְיֵיהּ וְאִיגַּנְדַּר בְּקִוטְמָא.

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.

וּמְנָא יָדְעִינַן? דִּלְבָתַר דְּקַלְיֵיהּ קָמִגַּנְדַּר בְּקִוטְמָא.

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.

וּמִי אִיכָּא כִּי הַאי גַוְונָא? אִין; דְּהָהוּא תּוֹרָא דַּהֲוָה בֵּי רַב פָּפָּא דַּהֲוָה כָּיְבִין לֵיהּ חִינְכֵיהּ, עָיֵיל וּפַתְקֵיהּ לְנָזְיָיתָא, וְשָׁתֵי שִׁיכְרָא וְאִיתַּסִּי.

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.

אֲמַרוּ רַבָּנַן קַמֵּיהּ דְּרַב פָּפָּא: מִי מָצֵית אָמְרַתְּ שׁוֹרוֹ דּוּמְיָא דִידֵיהּ?! וְהָא קָתָנֵי: שׁוֹרוֹ שֶׁבִּיֵּישׁ – פָּטוּר, וְהוּא שֶׁבִּיֵּישׁ – חַיָּיב. שׁוֹרוֹ דּוּמְיָא דִידֵיהּ נִתְכַּוֵּון לְבַיֵּישׁ – הֵיכִי מַשְׁכַּחַתְּ לַהּ?

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.

כְּגוֹן שֶׁנִּתְכַּוֵּון לְהַזִּיק. דְּאָמַר מָר: נִתְכַּוֵּון לְהַזִּיק – אַף עַל פִּי שֶׁלֹּא נִתְכַּוֵּון לְבַיֵּישׁ.

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.

רָבָא אָמַר: מַתְנִיתִין בְּשׁוֹגֵג,

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.

וְכִדְתָנָא דְּבֵי חִזְקִיָּה – דְּתָנָא דְּבֵי חִזְקִיָּה: מַכֵּה אָדָם וּמַכֵּה בְּהֵמָה;

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.

מָה מַכֵּה בְּהֵמָה – לֹא חִלַּקְתָּ בָּהּ בֵּין שׁוֹגֵג בֵּין מֵזִיד, בֵּין מִתְכַּוֵּון לְשֶׁאֵין מִתְכַּוֵּון, בֵּין דֶּרֶךְ יְרִידָה לְדֶרֶךְ עֲלִיָּיה, לְפוֹטְרוֹ מָמוֹן אֶלָּא לְחַיְּיבוֹ מָמוֹן; אַף מַכֵּה אָדָם – לֹא תַּחְלוֹק בּוֹ בֵּין שׁוֹגֵג לְמֵזִיד, בֵּין מִתְכַּוֵּון לְשֶׁאֵין מִתְכַּוֵּון, בֵּין דֶּרֶךְ יְרִידָה לְדֶרֶךְ עֲלִיָּיה, לְחַיְּיבוֹ מָמוֹן אֶלָּא לְפוֹטְרוֹ מָמוֹן.

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.

אֲמַרוּ לֵיהּ רַבָּנַן לְרָבָא: מִי מָצֵית מוֹקְמַתְּ לַהּ בְּשׁוֹגֵג? וְהָא ״מִפְּנֵי שֶׁנִּדּוֹן בְּנַפְשׁוֹ״ קָתָנֵי!

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?

הָכִי קָאָמַר: כֵּיוָן דִּבְמֵזִיד נִדּוֹן בְּנַפְשׁוֹ, וְהֵיכִי דָּמֵי – דְּקָא בָּעֵי לְאֶפְרוֹ; הַשְׁתָּא בְּשׁוֹגֵג – פָּטוּר.

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.

מַתְנִי׳ שׁוֹר שֶׁהָיָה רוֹדֵף אַחַר שׁוֹר אַחֵר, וְהוּזַּק; זֶה אוֹמֵר: ״שׁוֹרְךָ הִזִּיק״, וְזֶה אוֹמֵר: ״לֹא כִי, אֶלָּא בְּסֶלַע לָקָה״ – הַמּוֹצִיא מֵחֲבֵירוֹ עָלָיו הָרְאָיָה.

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.

הָיוּ שְׁנַיִם רוֹדְפִים אַחַר אֶחָד, זֶה אוֹמֵר: ״שׁוֹרְךָ הִזִּיק״, וְזֶה אוֹמֵר: ״שׁוֹרְךָ הִזִּיק״ –

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,

שְׁנֵיהֶם פְּטוּרִים. אִם הָיוּ שְׁנֵיהֶם שֶׁל אִישׁ אֶחָד – שְׁנֵיהֶם חַיָּיבִים.

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.

הָיָה אֶחָד גָּדוֹל וְאֶחָד קָטָן, הַנִּיזָּק אוֹמֵר: ״גָּדוֹל הִזִּיק״, וְהַמַּזִּיק אוֹמֵר: ״לֹא כִי, אֶלָּא קָטָן הִזִּיק״; אֶחָד תָּם וְאֶחָד מוּעָד, הַנִּיזָּק אוֹמֵר: ״מוּעָד הִזִּיק״, וְהַמַּזִּיק אוֹמֵר: ״לֹא כִי, אֶלָּא תָּם הִזִּיק״ – הַמּוֹצִיא מֵחֲבֵירוֹ עָלָיו הָרְאָיָה.

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.

הָיוּ הַנִּיזָּקִין שְׁנַיִם – אֶחָד גָּדוֹל וְאֶחָד קָטָן, וְהַמַּזִּיקִין שְׁנַיִם – אֶחָד גָּדוֹל וְאֶחָד קָטָן; הַנִּיזָּק אוֹמֵר: ״גָּדוֹל הִזִּיק אֶת הַגָּדוֹל, וְקָטָן אֶת הַקָּטָן״, וְהַמַּזִּיק אוֹמֵר: ״לֹא כִי, אֶלָּא קָטָן אֶת הַגָּדוֹל, וְגָדוֹל אֶת הַקָּטָן״; אֶחָד תָּם וְאֶחָד מוּעָד, הַנִּיזָּק אוֹמֵר: ״מוּעָד הִזִּיק אֶת הַגָּדוֹל, וְתָם אֶת הַקָּטָן״, וְהַמַּזִּיק אוֹמֵר: ״לֹא כִי, אֶלָּא תָּם אֶת הַגָּדוֹל, וּמוּעָד אֶת הַקָּטָן״ – הַמּוֹצִיא מֵחֲבֵירוֹ עָלָיו הָרְאָיָה.

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.

גְּמָ׳ אָמַר רַבִּי חִיָּיא בַּר אַבָּא: [זֹאת אוֹמֶרֶת] חֲלוּקִים עָלָיו חֲבֵירָיו עַל סוֹמְכוֹס, דְּאָמַר: מָמוֹן הַמּוּטָּל בְּסָפֵק – חוֹלְקִין.

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.

אֲמַר לֵיהּ רַבִּי אַבָּא בַּר מֶמֶל לְרַבִּי חִיָּיא בַּר אַבָּא: אָמַר סוֹמְכוֹס אֲפִילּוּ בָּרִי וּבָרִי? אֲמַר לֵיהּ: אִין, אָמַר סוֹמְכוֹס אֲפִילּוּ בָּרִי וּבָרִי.

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.

וּמִמַּאי דְּמַתְנִיתִין בְּבָרִי וּבָרִי הוּא? דְּקָתָנֵי: זֶה אוֹמֵר שׁוֹרְךָ הִזִּיק, וְזֶה אוֹמֵר לֹא כִי.

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.

מַתְקֵיף לַהּ רַב פָּפָּא: מִדְּרֵישָׁא בָּרִי וּבָרִי – סֵיפָא נָמֵי בָּרִי וּבָרִי;

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.

אֵימָא סֵיפָא: הָיָה אֶחָד גָּדוֹל וְאֶחָד קָטָן, נִיזָּק אוֹמֵר: ״גָּדוֹל הִזִּיק״, וּמַזִּיק אוֹמֵר: ״לֹא כִי, אֶלָּא קָטָן הִזִּיק״; אֶחָד תָּם וְאֶחָד מוּעָד, נִיזָּק אוֹמֵר: ״מוּעָד הִזִּיק״, וְהַמַּזִּיק אוֹמֵר: ״לֹא כִי, אֶלָּא תָּם הִזִּיק״ – הַמּוֹצִיא מֵחֲבֵירוֹ עָלָיו הָרְאָיָה;

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.

הָא לָא מַיְיתֵי רְאָיָה – שָׁקֵיל כִּדְאָמַר מַזִּיק; נֵימָא תִּהְוֵי תְּיוּבְתָּא דְּרַבָּה בַּר נָתָן – דְּאָמַר: טְעָנוֹ חִטִּים וְהוֹדָה לוֹ בִּשְׂעוֹרִים – פָּטוּר?

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.

אֶלָּא בְּבָרִי וְשֶׁמָּא.

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.

דְּקָאָמַר בָּרִי מַאן, דְּקָאָמַר שֶׁמָּא מַאן? אִי נֵימָא דְּקָאָמַר נִיזָּק בָּרִי וְקָאָמַר מַזִּיק שֶׁמָּא, אַכַּתִּי לֵימָא תִּהְוֵי תְּיוּבְתָּא דְּרַבָּה בַּר נָתָן!

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.

אֶלָּא דְּקָאָמַר נִיזָּק שֶׁמָּא, וְקָאָמַר מַזִּיק בָּרִי.

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.

וּמִדְּסֵיפָא נִיזָּק שֶׁמָּא וּמַזִּיק בָּרִי, רֵישָׁא נָמֵי נִיזָּק שֶׁמָּא וּמַזִּיק בָּרִי;

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.

וְאָמַר סוֹמְכוֹס אֲפִילּוּ בְּהָא – דְּאִיצְטְרִיךְ לְאַשְׁמוֹעִינַן דְּלָא?!

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.

לָא; סֵיפָא נִיזָּק שֶׁמָּא וּמַזִּיק בָּרִי, רֵישָׁא נִיזָּק בָּרִי וּמַזִּיק שֶׁמָּא.

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.

וְהָא לָא דָּמְיָא רֵישָׁא לְסֵיפָא!

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?

אָמְרִי: בָּרִי וְשֶׁמָּא, שֶׁמָּא וּבָרִי – חַד מִילְּתָא הִיא; בָּרִי וּבָרִי, שֶׁמָּא וּבָרִי – תְּרֵי מִילֵּי נִינְהוּ.

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.

גּוּפָא – אָמַר רַבָּה בַּר נָתָן: טְעָנוֹ חִטִּין וְהוֹדָה לוֹ בִּשְׂעוֹרִין – פָּטוּר. מַאי קָא מַשְׁמַע לַן? תְּנֵינָא: טְעָנוֹ חִטִּין וְהוֹדָה לוֹ בִּשְׂעוֹרִין – פָּטוּר!

§ 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).

אִי מֵהָתָם, הֲוָה אָמֵינָא: פָּטוּר מִדְּמֵי חִטִּין, וְחַיָּיב בִּדְמֵי שְׂעוֹרִין. קָא מַשְׁמַע לַן דְּפָטוּר לִגְמָרֵי.

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.

תְּנַן: הָיוּ הַנִּיזָּקִין שְׁנַיִם – אֶחָד גָּדוֹל וְאֶחָד קָטָן וְכוּ׳. הָא לָא מַיְיתֵי רְאָיָה – שָׁקֵיל כִּדְקָאָמַר מַזִּיק; אַמַּאי? חִטִּים וּשְׂעוֹרִים נִינְהוּ!

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.

רָאוּי לִיטּוֹל – וְאֵין לוֹ.

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.

וְהָתַנְיָא: הֲרֵי זֶה מִשְׁתַּלֵּם עַל הַקָּטָן מִן הַגָּדוֹל, וְלַגָּדוֹל מִן הַקָּטָן!

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.

דִּתְפַס.

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.

תְּנַן: הָיָה אֶחָד תָּם וְאֶחָד מוּעָד, הַנִּיזָּק אוֹמֵר: ״מוּעָד הִזִּיק אֶת הַגָּדוֹל, וְתָם אֶת הַקָּטָן״, וְהַמַּזִּיק אוֹמֵר: ״לֹא כִי, אֶלָּא תָּם אֶת הַגָּדוֹל, וּמוּעָד אֶת הַקָּטָן״ – הַמּוֹצִיא מֵחֲבֵירוֹ עָלָיו הָרְאָיָה. הָא לָא מַיְיתֵי רְאָיָה – שָׁקֵיל כִּדְקָאָמַר מַזִּיק; וְאַמַּאי? חִטִּין וּשְׂעוֹרִין נִינְהוּ!

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.

Today’s daily daf tools:

Delve Deeper

Broaden your understanding of the topics on this daf with classes and podcasts from top women Talmud scholars.

For the Beyond the Daf shiurim offered in Hebrew, see here.

New to Talmud?

Check out our resources designed to help you navigate a page of Talmud – and study at the pace, level and style that fits you. 

The Hadran Women’s Tapestry

Meet the diverse women learning Gemara at Hadran and hear their stories. 

I started learning when my brother sent me the news clip of the celebration of the last Daf Yomi cycle. I was so floored to see so many women celebrating that I wanted to be a part of it. It has been an enriching experience studying a text in a language I don’t speak, using background knowledge that I don’t have. It is stretching my learning in unexpected ways, bringing me joy and satisfaction.

Jodi Gladstone
Jodi Gladstone

Warwick, Rhode Island, United States

I saw an elderly man at the shul kiddush in early March 2020, celebrating the siyyum of masechet brachot which he had been learning with a young yeshiva student. I thought, if he can do it, I can do it! I began to learn masechet Shabbat the next day, Making up masechet brachot myself, which I had missed. I haven’t missed a day since, thanks to the ease of listening to Hadran’s podcast!
Judith Shapiro
Judith Shapiro

Minnesota, United States

While vacationing in San Diego, Rabbi Leah Herz asked if I’d be interested in being in hevruta with her to learn Daf Yomi through Hadran. Why not? I had loved learning Gemara in college in 1971 but hadn’t returned. With the onset of covid, Daf Yomi and Rabbanit Michelle centered me each day. Thank-you for helping me grow and enter this amazing world of learning.
Meryll Page
Meryll Page

Minneapolis, MN, United States

I’ve been studying Talmud since the ’90s, and decided to take on Daf Yomi two years ago. I wanted to attempt the challenge of a day-to-day, very Jewish activity. Some days are so interesting and some days are so boring. But I’m still here.
Sarene Shanus
Sarene Shanus

Mamaroneck, NY, United States

After enthusing to my friend Ruth Kahan about how much I had enjoyed remote Jewish learning during the earlier part of the pandemic, she challenged me to join her in learning the daf yomi cycle. I had always wanted to do daf yomi but now had no excuse. The beginning was particularly hard as I had never studied Talmud but has become easier, as I have gained some familiarity with it.

Susan-Vishner-Hadran-photo-scaled
Susan Vishner

Brookline, United States

When we heard that R. Michelle was starting daf yomi, my 11-year-old suggested that I go. Little did she know that she would lose me every morning from then on. I remember standing at the Farbers’ door, almost too shy to enter. After that first class, I said that I would come the next day but couldn’t commit to more. A decade later, I still look forward to learning from R. Michelle every morning.

Ruth Leah Kahan
Ruth Leah Kahan

Ra’anana, Israel

Hadran entered my life after the last Siyum Hashaas, January 2020. I was inspired and challenged simultaneously, having never thought of learning Gemara. With my family’s encouragement, I googled “daf yomi for women”. A perfecr fit!
I especially enjoy when Rabbanit Michelle connects the daf to contemporary issues to share at the shabbat table e.g: looking at the Kohen during duchaning. Toda rabba

Marsha Wasserman
Marsha Wasserman

Jerusalem, Israel

In January 2020 on a Shabbaton to Baltimore I heard about the new cycle of Daf Yomi after the siyum celebration in NYC stadium. I started to read “ a daily dose of Talmud “ and really enjoyed it . It led me to google “ do Orthodox women study Talmud? “ and found HADRAN! Since then I listen to the podcast every morning, participate in classes and siyum. I love to learn, this is amazing! Thank you

Sandrine Simons
Sandrine Simons

Atlanta, United States

When I started studying Hebrew at Brown University’s Hillel, I had no idea that almost 38 years later, I’m doing Daf Yomi. My Shabbat haburah is led by Rabbanit Leah Sarna. The women are a hoot. I’m tracking the completion of each tractate by reading Ilana Kurshan’s memoir, If All the Seas Were Ink.

Hannah Lee
Hannah Lee

Pennsylvania, United States

I’ve been wanting to do Daf Yomi for years, but always wanted to start at the beginning and not in the middle of things. When the opportunity came in 2020, I decided: “this is now the time!” I’ve been posting my journey daily on social media, tracking my progress (#DafYomi); now it’s fully integrated into my daily routines. I’ve also inspired my partner to join, too!

Joséphine Altzman
Joséphine Altzman

Teaneck, United States

I tried Daf Yomi in the middle of the last cycle after realizing I could listen to Michelle’s shiurim online. It lasted all of 2 days! Then the new cycle started just days before my father’s first yahrzeit and my youngest daughter’s bat mitzvah. It seemed the right time for a new beginning. My family, friends, colleagues are immensely supportive!

Catriella-Freedman-jpeg
Catriella Freedman

Zichron Yaakov, Israel

When we heard that R. Michelle was starting daf yomi, my 11-year-old suggested that I go. Little did she know that she would lose me every morning from then on. I remember standing at the Farbers’ door, almost too shy to enter. After that first class, I said that I would come the next day but couldn’t commit to more. A decade later, I still look forward to learning from R. Michelle every morning.

Ruth Leah Kahan
Ruth Leah Kahan

Ra’anana, Israel

I heard the new Daf Yomi cycle was starting and I was curious, so I searched online for a women’s class and was pleasently surprised to find Rabanit Michelle’s great class reviews in many online articles. It has been a splendid journey. It is a way to fill my days with Torah, learning so many amazing things I have never heard before during my Tanach learning at High School. Thanks so much .

Martha Tarazi
Martha Tarazi

Panama, Panama

When I began learning Daf Yomi at the beginning of the current cycle, I was preparing for an upcoming surgery and thought that learning the Daf would be something positive I could do each day during my recovery, even if I accomplished nothing else. I had no idea what a lifeline learning the Daf would turn out to be in so many ways.

Laura Shechter
Laura Shechter

Lexington, MA, United States

I had never heard of Daf Yomi and after reading the book, The Weight of Ink, I explored more about it. I discovered that it was only 6 months before a whole new cycle started and I was determined to give it a try. I tried to get a friend to join me on the journey but after the first few weeks they all dropped it. I haven’t missed a day of reading and of listening to the podcast.

Anne Rubin
Anne Rubin

Elkins Park, United States

I LOVE learning the Daf. I started with Shabbat. I join the morning Zoom with Reb Michelle and it totally grounds my day. When Corona hit us in Israel, I decided that I would use the Daf to keep myself sane, especially during the days when we could not venture out more than 300 m from our home. Now my husband and I have so much new material to talk about! It really is the best part of my day!

Batsheva Pava
Batsheva Pava

Hashmonaim, Israel

Hadran entered my life after the last Siyum Hashaas, January 2020. I was inspired and challenged simultaneously, having never thought of learning Gemara. With my family’s encouragement, I googled “daf yomi for women”. A perfecr fit!
I especially enjoy when Rabbanit Michelle connects the daf to contemporary issues to share at the shabbat table e.g: looking at the Kohen during duchaning. Toda rabba

Marsha Wasserman
Marsha Wasserman

Jerusalem, Israel

Last cycle, I listened to parts of various מסכתות. When the הדרן סיום was advertised, I listened to Michelle on נידה. I knew that בע”ה with the next cycle I was in (ב”נ). As I entered the סיום (early), I saw the signs and was overcome with emotion. I was randomly seated in the front row, and I cried many times that night. My choice to learn דף יומי was affirmed. It is one of the best I have made!

Miriam Tannenbaum
Miriam Tannenbaum

אפרת, Israel

In July, 2012 I wrote for Tablet about the first all women’s siyum at Matan in Jerusalem, with 100 women. At the time, I thought, I would like to start with the next cycle – listening to a podcast at different times of day makes it possible. It is incredible that after 10 years, so many women are so engaged!

Beth Kissileff
Beth Kissileff

Pittsburgh, United States

I started learning daf in January, 2020, being inspired by watching the Siyyum Hashas in Binyanei Haumah. I wasn’t sure I would be able to keep up with the task. When I went to school, Gemara was not an option. Fast forward to March, 2022, and each day starts with the daf. The challenge is now learning the intricacies of delving into the actual learning. Hadran community, thank you!

Rochel Cheifetz
Rochel Cheifetz

Riverdale, NY, United States

Bava Kamma 35

אַף הוּא נָמֵי דְּלָא קָבָעֵי לֵיהּ; וְקָתָנֵי: פָּטוּר – מִפְּנֵי שֶׁהוּא נִדּוֹן בְּנַפְשׁוֹ!

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.

לֹא; שׁוֹרוֹ דּוּמְיָא דִידֵיהּ – מָה הוּא דְּקָבָעֵי לֵיהּ, אַף שׁוֹרוֹ דְּקָבָעֵי לֵיהּ.

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.

שׁוֹרוֹ הֵיכִי מַשְׁכַּחַתְּ לַהּ? אֲמַר לֵיהּ רַב אַוְיָא: הָכָא בְּמַאי עָסְקִינַן – בְּשׁוֹר פִּקֵּחַ שֶׁעָלְתָה לוֹ נְשִׁיכָה בְּגַבּוֹ, וְקָא בָּעֵי לְמִקְלְיֵיהּ וְאִיגַּנְדַּר בְּקִוטְמָא.

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.

וּמְנָא יָדְעִינַן? דִּלְבָתַר דְּקַלְיֵיהּ קָמִגַּנְדַּר בְּקִוטְמָא.

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.

וּמִי אִיכָּא כִּי הַאי גַוְונָא? אִין; דְּהָהוּא תּוֹרָא דַּהֲוָה בֵּי רַב פָּפָּא דַּהֲוָה כָּיְבִין לֵיהּ חִינְכֵיהּ, עָיֵיל וּפַתְקֵיהּ לְנָזְיָיתָא, וְשָׁתֵי שִׁיכְרָא וְאִיתַּסִּי.

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.

אֲמַרוּ רַבָּנַן קַמֵּיהּ דְּרַב פָּפָּא: מִי מָצֵית אָמְרַתְּ שׁוֹרוֹ דּוּמְיָא דִידֵיהּ?! וְהָא קָתָנֵי: שׁוֹרוֹ שֶׁבִּיֵּישׁ – פָּטוּר, וְהוּא שֶׁבִּיֵּישׁ – חַיָּיב. שׁוֹרוֹ דּוּמְיָא דִידֵיהּ נִתְכַּוֵּון לְבַיֵּישׁ – הֵיכִי מַשְׁכַּחַתְּ לַהּ?

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.

כְּגוֹן שֶׁנִּתְכַּוֵּון לְהַזִּיק. דְּאָמַר מָר: נִתְכַּוֵּון לְהַזִּיק – אַף עַל פִּי שֶׁלֹּא נִתְכַּוֵּון לְבַיֵּישׁ.

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.

רָבָא אָמַר: מַתְנִיתִין בְּשׁוֹגֵג,

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.

וְכִדְתָנָא דְּבֵי חִזְקִיָּה – דְּתָנָא דְּבֵי חִזְקִיָּה: מַכֵּה אָדָם וּמַכֵּה בְּהֵמָה;

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.

מָה מַכֵּה בְּהֵמָה – לֹא חִלַּקְתָּ בָּהּ בֵּין שׁוֹגֵג בֵּין מֵזִיד, בֵּין מִתְכַּוֵּון לְשֶׁאֵין מִתְכַּוֵּון, בֵּין דֶּרֶךְ יְרִידָה לְדֶרֶךְ עֲלִיָּיה, לְפוֹטְרוֹ מָמוֹן אֶלָּא לְחַיְּיבוֹ מָמוֹן; אַף מַכֵּה אָדָם – לֹא תַּחְלוֹק בּוֹ בֵּין שׁוֹגֵג לְמֵזִיד, בֵּין מִתְכַּוֵּון לְשֶׁאֵין מִתְכַּוֵּון, בֵּין דֶּרֶךְ יְרִידָה לְדֶרֶךְ עֲלִיָּיה, לְחַיְּיבוֹ מָמוֹן אֶלָּא לְפוֹטְרוֹ מָמוֹן.

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.

אֲמַרוּ לֵיהּ רַבָּנַן לְרָבָא: מִי מָצֵית מוֹקְמַתְּ לַהּ בְּשׁוֹגֵג? וְהָא ״מִפְּנֵי שֶׁנִּדּוֹן בְּנַפְשׁוֹ״ קָתָנֵי!

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?

הָכִי קָאָמַר: כֵּיוָן דִּבְמֵזִיד נִדּוֹן בְּנַפְשׁוֹ, וְהֵיכִי דָּמֵי – דְּקָא בָּעֵי לְאֶפְרוֹ; הַשְׁתָּא בְּשׁוֹגֵג – פָּטוּר.

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.

מַתְנִי׳ שׁוֹר שֶׁהָיָה רוֹדֵף אַחַר שׁוֹר אַחֵר, וְהוּזַּק; זֶה אוֹמֵר: ״שׁוֹרְךָ הִזִּיק״, וְזֶה אוֹמֵר: ״לֹא כִי, אֶלָּא בְּסֶלַע לָקָה״ – הַמּוֹצִיא מֵחֲבֵירוֹ עָלָיו הָרְאָיָה.

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.

הָיוּ שְׁנַיִם רוֹדְפִים אַחַר אֶחָד, זֶה אוֹמֵר: ״שׁוֹרְךָ הִזִּיק״, וְזֶה אוֹמֵר: ״שׁוֹרְךָ הִזִּיק״ –

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,

שְׁנֵיהֶם פְּטוּרִים. אִם הָיוּ שְׁנֵיהֶם שֶׁל אִישׁ אֶחָד – שְׁנֵיהֶם חַיָּיבִים.

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.

הָיָה אֶחָד גָּדוֹל וְאֶחָד קָטָן, הַנִּיזָּק אוֹמֵר: ״גָּדוֹל הִזִּיק״, וְהַמַּזִּיק אוֹמֵר: ״לֹא כִי, אֶלָּא קָטָן הִזִּיק״; אֶחָד תָּם וְאֶחָד מוּעָד, הַנִּיזָּק אוֹמֵר: ״מוּעָד הִזִּיק״, וְהַמַּזִּיק אוֹמֵר: ״לֹא כִי, אֶלָּא תָּם הִזִּיק״ – הַמּוֹצִיא מֵחֲבֵירוֹ עָלָיו הָרְאָיָה.

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.

הָיוּ הַנִּיזָּקִין שְׁנַיִם – אֶחָד גָּדוֹל וְאֶחָד קָטָן, וְהַמַּזִּיקִין שְׁנַיִם – אֶחָד גָּדוֹל וְאֶחָד קָטָן; הַנִּיזָּק אוֹמֵר: ״גָּדוֹל הִזִּיק אֶת הַגָּדוֹל, וְקָטָן אֶת הַקָּטָן״, וְהַמַּזִּיק אוֹמֵר: ״לֹא כִי, אֶלָּא קָטָן אֶת הַגָּדוֹל, וְגָדוֹל אֶת הַקָּטָן״; אֶחָד תָּם וְאֶחָד מוּעָד, הַנִּיזָּק אוֹמֵר: ״מוּעָד הִזִּיק אֶת הַגָּדוֹל, וְתָם אֶת הַקָּטָן״, וְהַמַּזִּיק אוֹמֵר: ״לֹא כִי, אֶלָּא תָּם אֶת הַגָּדוֹל, וּמוּעָד אֶת הַקָּטָן״ – הַמּוֹצִיא מֵחֲבֵירוֹ עָלָיו הָרְאָיָה.

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.

גְּמָ׳ אָמַר רַבִּי חִיָּיא בַּר אַבָּא: [זֹאת אוֹמֶרֶת] חֲלוּקִים עָלָיו חֲבֵירָיו עַל סוֹמְכוֹס, דְּאָמַר: מָמוֹן הַמּוּטָּל בְּסָפֵק – חוֹלְקִין.

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.

אֲמַר לֵיהּ רַבִּי אַבָּא בַּר מֶמֶל לְרַבִּי חִיָּיא בַּר אַבָּא: אָמַר סוֹמְכוֹס אֲפִילּוּ בָּרִי וּבָרִי? אֲמַר לֵיהּ: אִין, אָמַר סוֹמְכוֹס אֲפִילּוּ בָּרִי וּבָרִי.

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.

וּמִמַּאי דְּמַתְנִיתִין בְּבָרִי וּבָרִי הוּא? דְּקָתָנֵי: זֶה אוֹמֵר שׁוֹרְךָ הִזִּיק, וְזֶה אוֹמֵר לֹא כִי.

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.

מַתְקֵיף לַהּ רַב פָּפָּא: מִדְּרֵישָׁא בָּרִי וּבָרִי – סֵיפָא נָמֵי בָּרִי וּבָרִי;

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.

אֵימָא סֵיפָא: הָיָה אֶחָד גָּדוֹל וְאֶחָד קָטָן, נִיזָּק אוֹמֵר: ״גָּדוֹל הִזִּיק״, וּמַזִּיק אוֹמֵר: ״לֹא כִי, אֶלָּא קָטָן הִזִּיק״; אֶחָד תָּם וְאֶחָד מוּעָד, נִיזָּק אוֹמֵר: ״מוּעָד הִזִּיק״, וְהַמַּזִּיק אוֹמֵר: ״לֹא כִי, אֶלָּא תָּם הִזִּיק״ – הַמּוֹצִיא מֵחֲבֵירוֹ עָלָיו הָרְאָיָה;

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.

הָא לָא מַיְיתֵי רְאָיָה – שָׁקֵיל כִּדְאָמַר מַזִּיק; נֵימָא תִּהְוֵי תְּיוּבְתָּא דְּרַבָּה בַּר נָתָן – דְּאָמַר: טְעָנוֹ חִטִּים וְהוֹדָה לוֹ בִּשְׂעוֹרִים – פָּטוּר?

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.

אֶלָּא בְּבָרִי וְשֶׁמָּא.

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.

דְּקָאָמַר בָּרִי מַאן, דְּקָאָמַר שֶׁמָּא מַאן? אִי נֵימָא דְּקָאָמַר נִיזָּק בָּרִי וְקָאָמַר מַזִּיק שֶׁמָּא, אַכַּתִּי לֵימָא תִּהְוֵי תְּיוּבְתָּא דְּרַבָּה בַּר נָתָן!

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.

אֶלָּא דְּקָאָמַר נִיזָּק שֶׁמָּא, וְקָאָמַר מַזִּיק בָּרִי.

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.

וּמִדְּסֵיפָא נִיזָּק שֶׁמָּא וּמַזִּיק בָּרִי, רֵישָׁא נָמֵי נִיזָּק שֶׁמָּא וּמַזִּיק בָּרִי;

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.

וְאָמַר סוֹמְכוֹס אֲפִילּוּ בְּהָא – דְּאִיצְטְרִיךְ לְאַשְׁמוֹעִינַן דְּלָא?!

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.

לָא; סֵיפָא נִיזָּק שֶׁמָּא וּמַזִּיק בָּרִי, רֵישָׁא נִיזָּק בָּרִי וּמַזִּיק שֶׁמָּא.

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.

וְהָא לָא דָּמְיָא רֵישָׁא לְסֵיפָא!

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?

אָמְרִי: בָּרִי וְשֶׁמָּא, שֶׁמָּא וּבָרִי – חַד מִילְּתָא הִיא; בָּרִי וּבָרִי, שֶׁמָּא וּבָרִי – תְּרֵי מִילֵּי נִינְהוּ.

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.

גּוּפָא – אָמַר רַבָּה בַּר נָתָן: טְעָנוֹ חִטִּין וְהוֹדָה לוֹ בִּשְׂעוֹרִין – פָּטוּר. מַאי קָא מַשְׁמַע לַן? תְּנֵינָא: טְעָנוֹ חִטִּין וְהוֹדָה לוֹ בִּשְׂעוֹרִין – פָּטוּר!

§ 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).

אִי מֵהָתָם, הֲוָה אָמֵינָא: פָּטוּר מִדְּמֵי חִטִּין, וְחַיָּיב בִּדְמֵי שְׂעוֹרִין. קָא מַשְׁמַע לַן דְּפָטוּר לִגְמָרֵי.

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.

תְּנַן: הָיוּ הַנִּיזָּקִין שְׁנַיִם – אֶחָד גָּדוֹל וְאֶחָד קָטָן וְכוּ׳. הָא לָא מַיְיתֵי רְאָיָה – שָׁקֵיל כִּדְקָאָמַר מַזִּיק; אַמַּאי? חִטִּים וּשְׂעוֹרִים נִינְהוּ!

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.

רָאוּי לִיטּוֹל – וְאֵין לוֹ.

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.

וְהָתַנְיָא: הֲרֵי זֶה מִשְׁתַּלֵּם עַל הַקָּטָן מִן הַגָּדוֹל, וְלַגָּדוֹל מִן הַקָּטָן!

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.

דִּתְפַס.

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.

תְּנַן: הָיָה אֶחָד תָּם וְאֶחָד מוּעָד, הַנִּיזָּק אוֹמֵר: ״מוּעָד הִזִּיק אֶת הַגָּדוֹל, וְתָם אֶת הַקָּטָן״, וְהַמַּזִּיק אוֹמֵר: ״לֹא כִי, אֶלָּא תָּם אֶת הַגָּדוֹל, וּמוּעָד אֶת הַקָּטָן״ – הַמּוֹצִיא מֵחֲבֵירוֹ עָלָיו הָרְאָיָה. הָא לָא מַיְיתֵי רְאָיָה – שָׁקֵיל כִּדְקָאָמַר מַזִּיק; וְאַמַּאי? חִטִּין וּשְׂעוֹרִין נִינְהוּ!

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.

Want to follow content and continue where you left off?

Create an account today to track your progress, mark what you’ve learned, and follow the shiurim that speak to you.

Clear all items from this list?

This will remove ALL the items in this section. You will lose any progress or history connected to them. This is irreversible.

Cancel
Yes, clear all

Are you sure you want to delete this item?

You will lose any progress or history connected to this item.

Cancel
Yes, delete