Talmud - Bava Kamma 35a בבא קמא ל״ה א׳

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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?

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.

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.

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,

Traduction : The William Davidson digital edition of the Koren Noé Talmud, with commentary by Rabbi Adin Even-Israel Steinsaltz.

BavaKamma 35a explores liability for fire damage caused by an ox versus a person, debating intent and whether the ashes were needed.