Bava Kamma 35: Animals, People, Humiliation, Intention, and Certainty

How smart is an ox?  Could an ox set fire to a haystack on purpose?  The rabbis wonder whether or not an ox might rub its back on a haystack to manage an injury.  In fact, we are told about one ox who had a dental problem and found a cure.  It walked into the family home and opened the lid of a container, drinking the alcohol inside.  The alcohol relieved the ox’s pain and acted as an anti-bacterial.

But can an ox intend to humiliate?   The rabbis agree that an ox cannot intentionally humiliate a person nor can it humiliate another ox.  A person who causes injury, however, can be held responsible for damaging another person even if his/her intention was only to injure that person.  We learn more about the comparison between punishments for animals and for people who do injury to others according to Rabbi Chizkiyya.  He uses Leviticus (21:24) to prove that one who kills an animal and one who kills a man are comparable.  That one verse states that animals that kill are fined (well, their owners are fined) while people who kill are put to death.    

Even though they are punished differently, Rabbi Chizkiyya suggests that in both cases there is no mention of intention, advertence, ascent (whether the injury was done from below or from above), or the importance of monetary restitution.  

In fact, we are reminded that when a person is put to death, s/he is not liable to pay other fines – the more serious consequence, death in this case, cancels out the less serious consequence, monetary payment in this case.  Rava argues that this case does not offer a perfect analogy. 

A new Mishna teaches us about the importance of certainty in cases where injury is blamed on an ox.  We are told about a number of cases where one ox or two oxen chase another ox and one or another are injured.  Perhaps one ox was tam and the other mo’ed.  Perhaps one ox was large and the other small.  Perhaps there were witnesses to some but not all of the interaction between oxen.  If there is noe learn that there is an assumption that the large would cause injury; the mo’ed would cause injury.  If the owner of the accused ox made a counter-claim, the burden of proof would rest upon him/her.

The Gemara begins with “what would Sumachos say?”  Sumachos  believed that property of uncertain ownership should be divided without one owner having to prove his/her claim.  Rabba bar Natan agrees:  in a case where a person says that he is owed wheat and the accused says that it is true – except that he owes barley, the accused is exempt from any payment at all.  Is this because of the principal of migo?  We learn in a note that such a claim would have to be made in a court setting, for otherwise the accusation of “you owe me wheat” might have been said in jest.  Or the accuser could say that it was said in jest.  Apparently a litigant who admits to wrongdoing is worth one hundred witnesses, and so an admission is taken very seriously.  However, a number of geonim suggest that if barley AND wheat were owed, the accused is not excuses from payment.  Rashi explains our Gemara: if a person accuses someone in a court of law that he is owed wheat, that statement is binding and exclusive.  The admission of owing barley is meaningless, for the claim of barley owed was not brought into the court.

The rabbis discuss this case at length.  A note teaches us that the person who claims that s/he only owes barley must take an oath of inducement .  This oath creates a certainty.  Certain and uncertain claims are treated very differently.

An amazing notion, the idea that an oath might prove certainty.  In our day, an oath proves that a person is willing to take an oath – no more, no less.  The idea of authority, whether that might be G-d or judges or a legal system or even teachers or parents, has been diluted to such an extreme that it is difficult to ever claim that we have grasped the “truth” of another person.  That change has come with many positive and many negative consequences, of course.  But our society is so very different from the one described by the rabbis when it comes to faith in G-d’s ability to see us, know us, praise us, and most notably to punish us.  Without that deterrent, what is an oath?