Bava Kamma - Daf 35
- An act punishable by death is exempt from payment, even where he is not liable to death
On the previous Daf, Rebbe Yochanan said that one burning on Shabbos without a purposeful intent is not liable. He is challenged from our Mishnah, which teaches that burning someone’s grain on Shabbos is exempt from paying because he is liable to death (and one act cannot incur death and monetary payment). Since the Mishnah discusses an ox burning grain (presumably without purposeful intent), the case of a man burning should be the same, yet he is exempt from paying!? After the Gemara suggests an ox can have purposeful intent, Rava answers that the Mishnah reflects the derashah of Chizkiyah’s academy: "מכה אדם" ו"מכה בהמה" – the Torah compares one who strikes a person (who is executed and does not pay damages) and one who strikes an animal (who does pay), teaching that just as one who strikes an animal always pays, regardless of intent, אף מכה אדם – so too, regarding one who strikes a person, לא תחלוק בו בין שוגג למזיד – you should not distinguish between an unintentional act and an intentional act, or other exemptions from execution, לחייבו ממון – to obligate him to pay money; אלא לפוטרו ממון – rather, always exempt him from paying money. Rashi explains that here, even though the burning was destructive, he is still exempt from paying.
- Disputes about the cause of damage
The next Mishnah states: שור שהיה רודף אחר שור אחר – If an ox was chasing another ox, והוזק – and it was damaged, זה אומר שורך הזיק – and [the damaged party] says, “Your ox damaged it,” וזה אומר לא כי אלא בסלע לקה – and [the owner of the chasing ox] says, “No, it was injured by a rock,” המוציא מחבירו עליו הראיה – the burden of proof is on the one trying to collect money from his fellow. Similarly, if two oxen chased an ox and one injured it, and it is unknown which, the owner of each ox can claim the damage was inflicted by the other and is exempt until proof is brought. If both are owned by one person, but the amount of payment would differ depending on which animal inflicted the damage (i.e., if one or both are a tam, which pays only half-damages, and cannot exceed the damager’s value), the owner can always claim the lower amount until proof is brought. The Gemara notes that this Mishnah disagrees with Sumchos, who says ממון המוטל בספק חולקין – money whose ownership is in doubt is divided, and the accused damager would pay half.
- טענו חטין והודה לו בשעורין
Rabbah bar Nassan said: טענו חטין והודה לו בשעורין פטור – If one claimed wheat from [someone], and the other person admitted owing him barley, he is exempt from paying even barley, because by claiming only wheat, he is admitting he is not owed barley, and has forgiven that debt. This is challenged from our Mishnah, which taught that if someone’s two oxen (each a tam) injure a second person’s two oxen, and the victim claims the larger ox damaged his larger ox, and the smaller ox damaged his smaller ox (increasing his claim), and the defendant says the opposite, he must bring proof to collect his claim. This implies that without proof, he collects according to the defendant’s position, even though it is not what the plaintiff claimed!? The Gemara answers that the Mishnah means: ראוי ליטול ואין לו – he is eligible to collect if he brings proof, but if he does not, he [collects] nothing. A Baraisa explicitly says the plaintiff does collect the smaller claim of the defendant, and the Gemara explains it is דתפס – where he seized the oxen, and they are already in his possession.
