Talmud - Bava Kamma 36a בבא קמא ל״ו א׳

The Gemara answers: The mishna does not indicate that the injured party receives compensation. Rather, it indicates that it is fitting for him to take compensation, but in practice he does not receive any compensation. The Gemara asks: But isn’t it taught in a baraita that he receives payment for his small ox from the liable party’s forewarned ox, and for his large ox from the liable party’s innocuous ox? Evidently he does receive payment. The Gemara answers: This baraita is also 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. The court cannot compel the defendant to pay him ab initio.

§ The mishna teaches: In a case where an ox was injured by one of two oxen that were pursuing it, if both oxen belonged to one person, both are liable. Rava of Parzika said to Rav Ashi: Should one learn from the fact that both are liable that in a case of innocuous oxen that caused damage, if the injured party wishes, he can collect damages from the proceeds from the sale of this ox, and if he wishes, he can collect from the sale of that ox?

Rav Ashi rejected this inference: With what are we dealing here? We are dealing with forewarned oxen, in which case the injured party does not collect damages exclusively from the belligerent ox but rather from any of its owner’s property. Therefore, he can collect from either ox as compensation.

Rava of Parzika replied: If the mishna is referring to forewarned oxen, say the latter clause of the mishna: If one of the belligerent oxen was large and the other one was small, and the injured party says that the large ox caused the damage, but the one liable for damage says: No; rather, the small ox caused the damage, the burden of proof rests upon the claimant. If this is referring to forewarned oxen, what difference does it make to him which one caused the injury? Ultimately, the liable party is required to pay the value of a full ox in any case.

Rav Ashi said to him: The latter clause of the mishna is referring to innocuous oxen, and the first clause is referring to forewarned oxen.

Rav Aḥa the Elder said to Rav Ashi: If it is referring to a case of forewarned oxen, where compensation is not collected specifically from the belligerent ox, why does the mishna state: They are liable, in the plural form? It should have stated: The man is liable. And furthermore, what is the word both in the statement: Both are liable, referring to?

Rather, the first clause of the mishna is actually referring to innocuous oxen, and it is the opinion of Rabbi Akiva, who says that the injured party and the liable party are partners, as they share ownership of the belligerent ox. And therefore, the reason that the owner of the belligerent oxen is liable is that the two of them are available, so he cannot dismiss the injured party by claiming that this ox is not the one that caused the injury. But if the two of them are not available, e.g., if one died or was lost, he can say to the injured party: Go bring proof that it was this ox that caused you damage, and I will pay you compensation.

MISHNA: With regard to an innocuous ox that gored four or five other oxen one after the other, its owner shall pay the owner of the last one of them half of the damages from the proceeds of the sale of the belligerent ox; and if there is surplus value left in his ox after he pays that owner, he shall return it to the owner of the previous ox that was gored; and if there is still surplus value left in his ox after he pays that owner, he shall return it to the one prior to the previous one. The principle is that the owner of the latest of the oxen gored in succession gains. This is the statement of Rabbi Meir.

Rabbi Shimon says that the division of the compensation is as follows: With regard to an innocuous ox worth two hundred dinars that gored an ox worth two hundred dinars, thereby killing it, and the carcass is worthless, the injured party takes one hundred dinars, i.e., half the cost of the damage, from the proceeds of the sale of the belligerent ox, and the owner of the belligerent ox takes the remaining one hundred dinars.

If the ox, after goring the first ox but before compensation had been paid, again gored another ox worth two hundred dinars, and the carcass is worthless, the owner of the last ox that was gored takes one hundred dinars, and with regard to payment for the previous goring, the owner of this ox that was gored takes fifty dinars, which is half the remaining value of the belligerent ox after one hundred dinars were paid to the last injured party, and the owner of that belligerent ox takes the remaining fifty dinars.

If the ox, after goring the first two oxen but before compensation had been paid, again gored another ox worth two hundred dinars, and the carcass is worthless, the last injured party takes one hundred dinars, the previous one takes fifty dinars, and the first two, i.e., the first injured party and the owner of the belligerent ox, divide the remainder, each receiving one gold dinar, which is worth twenty-five silver dinars.

GEMARA: Whose opinion is expressed in the mishna? Apparently the mishna is neither in accordance with the opinion of Rabbi Yishmael, nor in accordance with the opinion of Rabbi Akiva (see 33a).

The Gemara explains: If the mishna had been in accordance with the opinion of Rabbi Yishmael, who says that the owners of the gored oxen are considered creditors of the owner of the belligerent ox, then instead of stating this halakha that the owner of the latest of the oxen gored in succession gains, the mishna should have stated that the owner of the earliest of the oxen gored in succession gains, since the creditor to whom the ox is initially liened collects first. And if the mishna had been in accordance with the opinion of Rabbi Akiva, who says that the belligerent ox belongs to its owner and to the injured party, who are considered partners in the ownership of the ox, then instead of stating this ruling that if there is surplus value remaining in the ox after he pays that owner

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

Bava Kamma 36a explores whether an injured party actually collects damages, and debates liability rules when two oxen jointly pursue and injure another.