Commento su Bava Qamma 3:13

A jug is placed in the public domain... And the jug broke in the public domain and someone was slipped in the water...

המניח את הכד וכו' ושברה פטור – for it is not the manner of human beings to take consideration of the roads.

Introduction The following two mishnayot (plural of mishnah) deal with damages that a person’s possessions might cause in the public domain. In general if a person leaves something in the public domain and someone else comes along and breaks it the person who broke it is not obligated to pay for the broken item. Furthermore, if the person who breaks the object is also injured while doing so, the owner of the object will be liable for his injuries.

ואם הזיק בה בעל החבית חייב – and even if he declared it ownerless, for all who declare ownerless his damages, that he didn’t have a permission from the outside to make them as if he had not made them ownerless.

In the first section of mishnah one we learn that a person does not have the right to leave his objects in the public domain. Therefore if he should do so and another should come along and break the object, the person who broke it is exempt and if he should be injured the owner is liable.

The general rule by us, it is not the way of people to pay attention to the road, therefore, if a person comes and trups on it, he is exempt, and we do not say to him you should have noticed where you were going.

או שלקה בחרסיה חייב – for he holds that if he stumbled, he is negligent, but is not an accident and therefore is liable.

If a man’s jug broke in the public domain, and another slipped on the water, or was hurt by the potsherds, he is liable. Rabbi Judah says: “If he [broke the jug] with intention, he is liable, But if he broke it without intention he is not liable.” In section 2 Rabbi Judah teaches us a new principle, that of intention. If a person accidentally put a damaging object into the public domain he is not liable for subsequent damages. One is only liable if he put the damaging object into the public domain on purpose.

And what that it says, if the jug broke and someone slipped in the water, they're obligated, the idea is that when a person damages at the time they are falling or they break another thing- the stumbler (who dropped the jug initially) is obligated to pay what he damaged.

במתכוין חייב – if he intended to take possession of its shards and [what exists] in the water after his pitcher broke, he is liable for their damages, for this is like his pit that had done damage, but if he did not intend to take possession of them since he uprooted/eradicated them he is the victim of an accident for he holds tha he stumbled over it, he is not negligent, for the shards and the water are ownerless after he had met with an accident and he did not intend to take ownership of its shards and he waer, and It is like it was never his and he is exempt from their damages.

This is the opinion of Rav Meir, that he says if someone stumbles, he is negligent, but the sages say that he was not at fault at the time of the falling and he's not obligated in anything.

The opinion of Rabbi Yehuda, that he says the stumbler is negligent, if he intended to take the shards.

Therefore he is not at fault as we explain it is as if no one ever owned the shards.

And the halakah is like Rabbi Yehuda and not like Rabbi Meir.

If someone pours water in the public doman and it damages another......

השופך מים ברה"ר – even though that he is operating with permission, such as during the rainy season where it is permitted to pour water in the public domain, even so, if someone else suffered damage from them, he is liable for his damages.

The second mishnah lists some common ways in which a person might put a damaging object into the public domain.

What that it says if someone hid thorns or glass or made a fence out of thorns and someone is damaged by them, he's obligated

המצניע את הקוץ וכו' – and such as when he hit them in the public domain , and similarly, someone makes his fence out of thorns and they blossomed in the public domain. But if he squeezed them in within his own [property] and someone else was caused damage by them, he is exempt [from liability], for it is not the manner of people to rub one’s self against a wall.

In section 2 we learn that even though he may have tried to keep them out of people’s way, if they are harmful materials he is responsible for subsequent damages. One might want to consider the implications these mishnayot have on modern ecological problems. The sages considered the public domain to belong to everyone and as such no one was allowed to place there potentially dangerous material.

Because it's an established principle that it's not the way of people to rub against walls.

Questions for Further Thought:
• What is the difference between the cases in clause 2 of the first mishnah and clause 1 of the second mishnah?
• Rabbi Judah distinguishes between deliberate and inadvertent breaking of the jug. Evidently the sage(s) who taught the clause preceding Rabbi Judah did not make such a distinction. According to them one would be obligated even if the jug broke accidentally. What is the logic behind this opinion?
• The first clause of mishnah one says that when one stumbles on a jug left in the public domain he is not obligated. What might the law be if he broke it with intent? Would he still be exempt or would he be obligated?

If a man put out his chopped straw or stubble in the public domain....

לזבלים – that the straw and stubble will decay and become manure to manure the fields and vineyards.

Introduction The first mishnah we deal with today continues to discuss the topic of damages caused by a person’s property in the public domain. We learned in the previous two mishnayoth that if a person brings his belongings out to the public domain and someone damages them, the damager is not liable. Furthermore if someone is injured by these belongings, their owner is liable. This mishnah will add in a third principle: if a person brings an item out to the public domain, an item which is potentially damaging to others, any person who finds that item can take it. In other words, the owner of the item is punished for endangering other people’s safety. Today’s second mishnah deals with the liability of a person who trips in the public domain and thereby causes damage to another.

This that we said all who get there first is entitled to it, it is a fine.

כל הקודם בהן זכה – that the Rabbis have fined him.

In mishnah three a person put out straw and stubble in order to make fertilizer for his field. The mishnah states that this is an illegal action, the consequences of which are liability for damages done to others and loss of property. Note the double punishment: 1) anyone can claim the straw and stubble, meaning they are not really his anymore; 2) nevertheless if someone is injured by them, we make the owner, who is not really the owner anymore, pay for the injuries. Evidently the mishnah sees bringing the straw and stubble out to the public domain as a grave offense.

And cattle dung, even at the season of taking out of manure, if it damages, they are obligated.

כל המקלקלים ברה"ר – and even if they do it with permission such as the case at the time of removing the manure, and if they caused damage, they are liable.

If a man turned over a piece of cattle dung in the public domain and another was injured thereby, he is liable for injury. Section two deals with a situation where a person saw an ownerless piece of dung in the public domain. (Believe it or not, people wanted to own this dung for fertilizing.) By turning it over, he has taken possession of the dung. Therefore if someone else is injured by it, he is obligated. The mishnah teaches that once you technically own something, you now have to make sure it doesn’t injure someone else. Mishnah four teaches us the principle that accidentally stumbling is not an excuse for causing damages. Although the person who tripped certainly did not intend to do so, and probably caused damage to the things he himself was carrying (pots), he is still liable. He should have walked more carefully.

היה הופך את הגלל – cattle dung.

Questions for Further Thought:
• What is the difference between Rabban Shimon ben Gamaliel’s opinion and the statement that immediately preceded him? Is there even a disagreement in this mishnah?

2 potmakers that were walking one after the other...

הראשון חייב בנזקי שני – and such as the case where he was able to stand and did not stand fr he is negligent. But if he wasn’ able to sand, he is exempt, for he hold that if he stumbled, he is not negligent.

Two pot-sellers were walking one behind the other and the first stumbled and fell, and the second fell on the first, the first one is liable for the injury caused to the second. Mishnah four teaches us the principle that accidentally stumbling is not an excuse for causing damages. Although the person who tripped certainly did not intend to do so, and probably caused damage to the things he himself was carrying (pots), he is still liable. He should have walked more carefully.

This is when the faller is able to get up and he doesn't get up, rather he remains lying until the other trips over him

Questions for Further Thought:
• Mishnah four uses the example of pot-sellers. Why use this example? What piece of information might the mishnah be teaching by using this example and not, for instance regular pedestrians?
• What are some modern day situations that are similar to these mentioned in the mishnah? How does modern law differ? How is it the same?To sign up for the Mishnah Yomit project visit www.mishnahyomit.org or www.uscj.org.To receive hard copies of Mishnah Yomit please write to Dr. Morton Siegel, United Synagogue of Conservative Judaism, 155 Fifth Avenue, New York, NY 10010

And the halachah is like Rav Yehuda in the explanation of the accustomed ox and the halachah is like Rav Meir in the explanation of a simple ox.

And therefore (he is obligated, but) if he is not able to get up and the other falls on him, he is not obligated, as we explain, if he trips it is an accident

This is all clear

היה בעל קורה ראשון וכו' פטור – for this one walks in an appropriate manner and the other one hurried to go.

This one comes carrying his jar and another one comes carrying his beam: this one’s jar is broken by that one’s beam, [The owner of the beam] is exempt, since this one has the right to walk along and this one has the right to walk along.
If the owner of the beam came first and the owner of the jar came after, and the jar was broken by the beam, the owner of the beam is exempt. If the owner of the beam stopped [walking suddenly], he is liable. If [the owner of the beam had said] “Stop” to the owner of the jar, he is exempt.
If the owner of the jar came first and owner of the beam came after, and the jar was broken by the beam, [the owner of the beam] is liable. If the owner of the jar stopped [walking suddenly],he is exempt. If [the owner of the jar had said} “Stop” to the owner of the beam, he is liable.
This mishnah continues to deal with the subject of damages done by a human being in the public domain. The basic topic is damages done by people carrying different objects and bumping into each other. One should note that although this mishnah (and most mishnayoth) deal with specific topics, their relevance is far greater than the immediate material learned. We are learning here about such important issues as individual rights which conflict with the individual rights of others. From the specific examples of the mishnah we can learn many principles about the public rights that people have, rights that may occasionally come into conflict with others’ rights. As one learns these mishnayoth please try to extract from them general principles and think about how they apply in other circumstances, perhaps circumstances relevant to modern societal problems.
This mishnah lists three scenarios regarding people walking in the public domain, one carrying a beam and one carrying a jar. In all of the scenarios the jar is broken by the beam and the mishnah needs to decide if the owner of the beam is liable. In section one the beam-owner and jar-owner are evidently walking together, meaning neither one is walking in front of the other. The owner of the jar has the right to walk in the public domain without being damaged. Therefore if the owner of the beam walks into him he is liable. He should have watched where he was going.
In the second clause the owner of the beam was walking in front of the owner of the jar. If the jar-owner walks into him, it is his own fault and the beam-owner is exempt. If, however, the beam-owner stops suddenly he is obligated. He should have realized that stopping suddenly might cause the other person to walk into him. Therefore if he didn’t stay “stop” he is liable, but if he did say “stop”, thereby warning off the jar-owner he is exempt.
The third section reverses the scenario that we saw in the second section: this time the jar-owner is walking first. Therefore if the beam-owner walks into him he is obligated. If, however, he stopped suddenly without warning the beam-owner the beam-owner will be exempt.

Two that were going in the public domain, one was running etc... ...

חד רץ ואחד מהלך וכו' – Our Mishnah is deficient and should be read as follows: one is running and the other is walking on the Eve of the Sabbath or the Eve of Jewish holy days or that both of them were running in the rest of the days of he year, both of them are exempt, for on the eves of the Sabbath and Jewish holy days, the one who ran is running with permission for he is going to perform a Mitzvah in order to prepare for the needs of the Sabbath or the Jewish holy day, and because of this, he is exempt. But on the rest of the days of the year, when both of them are running and both of them are strange, both of them are exempt [from liabilities caused to one another].

Introduction The first mishnah we will learn today continues to deal with damages caused by people bumping into each other in the public domain. The second mishnah, the seventh of the chapter, deals with a person who is chopping wood and a chip flies off and injures someone else. The new topic here is damages caused by a person’s livelihood to other people. The mishnah teaches us that although a person has a right to work in a profession that he/she may choose, that profession cannot cause damage to other people.

The idea by us is that he who is running is different and if he damages any man at the time of his running, he is obligatged

[If] two were walking along in the public domain, the one running and the other walking, or both running and they injured one another, neither is liable. Mishnah six teaches again that people have the right to walk in the public domain and if someone bumps into them, they will not be liable for damages, unless they should have seen the person, as we learned yesterday. The new element in this mishnah is running. One might have thought that running in the public domain is by its nature dangerous, and therefore anyone who does so will be liable for any damages he/she causes. The mishnah says no, a person has the right to run in the public domain. Running in and of itself is not a criminally negligent activity and therefore does not carry with it an added degree of liability.

Unless that time is the eve of shabbasim or the eve of holidays because people are rushing to do matters of mitzvot.

Questions for Further Thought:
• Yesterday I suggested to analogize the mishnah’s descriptions of accidents in the public domain to traffic accidents in our society. What might be a modern equivalent to running? Try to think of something that is inherently more dangerous but still legal and does not carry with it any extra liability. Is there such a thing?

And because of this, this (mishnah) is lacking, and it's appropriate to say thus, if 1 was running and 1 was walking on the eve of shabbosim or the holidays or that it was 2 were running on the other days of the year and they damage each other, they are exempt.

It lets us know that the chopper, if he damages, he is obligated, whether he is on his own property or if he is not on his own property, and whether he damages in a place where many are found, and this is a public domain, or in a place where the many are not found, and this is a private domain.

המבקע – wood

[If] a man was splitting wood in the private domain and injured anyone in the public domain, or if he was in the public domain and injured anyone in the private domain, or if he was in a private domain and injured anyone in another private domain, he is liable. Mishnah seven teaches that if a person while chopping wood damages another person, no matter where the chopping is done and no matter where the damages are done, the wood-chopper is liable.

והזיק ברשות היחיד – of others.

Questions for Further Thought:
• Based on mishnah seven, would you think a person would be liable if while chopping wood on his own property he damages someone who has entered his property?

ברשות היחיד – his own.

והזיק ברשות היחיד – of others,

חייב – he is liable [for damages caused] and even though he did it in his domain for many are not found there since we would say that he should have taken deliberation. Even as such, he is liable.

He pays the balance, that he should evaluate how much this one is obligated for what he damaged and how much the second is obligated also, and if the damages are equivalent, this one and this one go out (with nothing)...

במותר חצי נזק – they estimate what the damages of this one are greater than the damage of that one, and in that surplus, the person who caused greater damage pays the one-half assessment.

If two oxen which were accounted harmless hurt one another, the owner pays half-damages for that one which suffered the greater hurt.
If both were attested dangers full damages are payable for that one which suffered the greater hurt.
If one was accounted harmless and the other was an attested danger, that which was an attested danger as against that which was accounted harmless must pay full damages for the greater hurt that the other has suffered, while that which was accounted harmless, as against that which was an attested danger, pays only half damages for the greater hurt that the other has suffered.
So, too, if two men hurt one another, full damages are payable for that one which suffered the greater hurt.
If a man and an ox which was accounted harmless hurt one another, the man as against the ox accounted harmless must pay full damages for the greater hurt that the other has suffered, while the ox accounted harmless, as against the man, pays only half damages for the greater hurt that the other suffered. Rabbi Akiva says: “Even if an ox accounted harmless hurt a man, full damages must be paid for that one which suffered the greater hurt.
This mishnah returns to deal with a subject that we dealt with in the last mishnah of chapter one and in the fourth and fifth mishnayoth of chapter 2 and that is the goring ox. Remember, there are two types of goring oxen, one that is a previously attested danger (muad), who has been testified against. The second type is innocent (tam) meaning he is not a previously attested danger. When a muad damages the owner will pay full damages from the best of his land. When a tam damages the owner will pay half damages from the value of the tam itself. This means that the upper limit of liability will be the value of the damaging animal.
We will continue to deal with the goring ox for the next two and a half chapters. I will not be explaining the concepts of tam and muad every time we encounter them. I will try to reference places where I did explain them. If you are wondering why the mishnah is so fascinated by the goring ox, it is due to the fact that the Torah mentions the ox quite frequently (Exodus 21:28-32, 35-36). It is indeed the paradigm for the damaging animal.
The rendering of this mishnah into sensible English is very difficult since the mishnah speaks in shorthand. However, the explanation should make more sense to you.
The first section deals with two harmless oxen that gore each other. In general the owner of each is obligated to pay half damages to the other. Here we figure out what was the greater damage and the owner of the less injured ox will pay half of that amount. A table will help.
Value of ox before injury
Value after injury
Damages
Amount owed
100 (tam)
30
70
35
50 (tam)
30
20
10
In this case the owner of the ox worth fifty will pay twenty-five to the owner of the ox worth 100.
In the second case both of the animals were muad and will therefore pay full damages. Our table now looks like this:
Value of ox before injury
Value after injury
Damages
Amount owed
100 (muad)
30
70
70
50 (muad)
30
20
20
In this case the owner of the ox worth fifty will pay fifty to the owner of the ox worth 100.
In the third case one ox was muad and one was tam. The muad will owe half damages and the tam full damages. According to our example in this case the animal worth 100 was a muad and therefore will owe full damages for the animal worth 50. The animal worth 50 is a tam and will therefore pay half damages for the animal worth 100. Our table now looks like this:
Value of ox before injury
Value after injury
Damages
Amount owed
100 (muad)
30
70
35
50 (tam)
30
20
30
In this case the owner of the ox worth fifty will pay 5 to the owner of the ox worth 100.
The fourth case of the mishnah deals with human beings who injure one another. Since a human being is always a muad (see chapter one mishnah four), this is similar to case number two.
The fifth and final case deals with a human being (who is always muad) and a harmless ox (tam) who injure one another. This case is similar to case number three. We will nevertheless bring a new table.
Value before injury
Value after injury
Damages
Amount owed
1000-- human (muad)
500
500
250
50--ox (tam)
20
30
30
In this case the owner of the ox will pay the human 220. Rabbi Akiva disagrees. According to him an ox that injures a human being always pays full damages as if it was a muad. Therefore in the previous scenario the owner of the ox will pay 470 to the human.

And if the damages of one of them were more, that it was appropriate for one to pay more than what is appropriate for the other to pay, he who damaged more pays the difference. And it is not neccesary to give an example because this is clear.

מועד בתם משלם במותר – meaning to say, if he (i.e., the forewarned animal) damaged the innocuous animal to a greater extent than what the innocuous animal did.

And that the pasuk says ' if it gores a minor man or woman, like this judgement should be done to it. It's a disagreement between Rabbi Akiva and the sages in the explanation of this pasuk, the sages say like the judgement of one ox to another ox so too the judgement [of an ox] to a person, meaning to say that the unaccustomed is obligated in half damages and the accustomed full damages. and this has already reached us that all agree thata man is always accustomed. And Rabbi Akiva says like this judgement refers to the accustomed cow, because the pasuk comes to speak about this matter, thus it will be in general the law of an ox that damages a man whther it is accustomed of unaccustomed

אדם בתם משלם במותר נזק שלם – for a person is forever forewarned.

And the halakah is not like Rabbi Akiva

ותם באדם – he (i.e., the owner of the innocuous animal) pays the surplus of one-half damages, as it is written (Exodus 21:31): “So, too, if it gores a minor, male or female, [the owner] shall be dealt with according to the same rule.” Just as the judgment of an ox harming another ox, so too the judgement of an ox harming a human being. Just as an ox goring an ox – [the owner of] the innocuous ox who gored another ox pays half-damages, so too, with an ox which goes a person – [the owner of] the innocuous ox pays one-half damages and the [owner of the] forewarned ox pays full damages.

ר"ע אומר אף תם שחבל באדם משלם במותר נזק שלם – as he expounds “[shall be dealt with according to] the same rule” for a law that this verse removes from it. For it speaks about a forewarned ox. And this is what the Biblical verse said “"כמשפט הזה /the same rule – refer to the forewarned ox that [its owner] pays full damages. [The words] "יעשה לו" /shall be dealt with – means for every ox that gores a person, even if it is an innocuous ox. But the Halakha is not according to Rabbi Akiva.

An ox is worth a manah (100 dinarim) gores an ox worth 200 (dinarim):

וכן הלכה – certainly it is the Halakha that he gives him a Maneh which is one-half the damages, but this ox is not mentioned in the Torah , for you have fulfilled and sold the living ox, etc. And there is a dispute between Rabbi Meir and Rabbi Yehuda in the profit of the carrion, such as at the time of death, it was not worthy anything, but it increased in value afterwards and it was worthy of being fed to dogs or to be sold to a heathen. Rabbi Meir holds that there is raise in the value of the carrion of the ox that had suffered damages, and the one (i.e., the owner of the ox) who did the damage didn’t give anything other than providing one-half of his damage, and that is identical with that which Rabbi Meir said regarding this, as it states (Exodus 21:35): “[When a man’s ox injures his neighbor’s ox and it dies,] they shall sell the live ox and divide its price,” meaning to say, that he (i.e., the owner of the ox that did the damage) gives him half his damages from the monetary value of the living ox, and he doesn’t deduct for himself anything on account of the increase in value that the carrion gained. But Rabbi Yehuda holds that the one-half of the increased value of the carrion that caused damages and when [the owner of] the ox that caused damages pays to [the owner of] the ox that suffered damages his one-half damage, he deducts for himself one-half the increase in value of the carrion (according to the condition of the animal) from the time of [its] death until the time of their appearance in court (see Talmud Bava Kamma 34a), and that is exactly what Rabbi Yehuda stated to Rabbi Meir: You have fulfilled the Biblical verse in that you have sold the living animal, but you have not fulfilled [the Biblical mandate] (Exodus 21:35): “they shall also divide the dead animal,” for he has to divide the increase In value of the dead carrion and the [owner of the] one who did damage must give him [the owner of the one whose ox died] one-half. And the Halakha is according to Rabbi Yehuda.

Introduction Our mishnah is concerned with the scenario mentioned in Exodus 21:35 (translation from JPS Tanakh): “When a man’s ox gores his neighbor’s ox and it dies, they shall sell the live ox and divide its price, they shall also divide the dead animal.” This system of payment of damages (applicable only to a “tam” or harmless ox) works well when both animals are worth the same amount. For instance if both the goring ox and the gored ox were worth 200 before the goring, and the carcass of the gored ox is 50, the two owners will sell both animals and split 200 and 50, leaving each with 125, or 75 less than the worth of their original ox. 75 is half of the 150 in damages caused to the gored ox, which matches our principle that when a tam injures, it’s owner pays half damages. However this system does not work well if the two oxen are of differing values. For instance, if the goring ox is worth 500 and the gored ox was worth 50 before the goring and its carcass is worth 30, the two owners will split 500 and 30, leaving each with 265. In this case the owner of the gored ox has benefited 215 since his original ox was worth 50. Likewise the system in the Torah does not work if the gored ox was worth more than the goring ox. If the goring ox was worth 50 and the gored ox 200 before the goring, and its carcass is worth 50, the two owners will split 50 and 50 leaving each with 50. The owner of the gored ox did not receive half damages, which would have been 100. The sages in our mishnah are dealing with the case in which we are able to fulfill the literal meaning of the verse in Exodus and still maintain our principle of half damages.

An ox worth 200 that gores an ox worth 200:...

If an ox worth 100 gored an ox worth 200, and the carcass is not worth anything, [the owner of the gored ox] takes the [live] ox. Section 1 describes a case where an ox worth 100 gored an ox worth 200. The owner of the goring ox owes 100, which are half damages. Since the carcass is not worth anything, the owner of the dead ox can just take the live ox as payment. This case is significantly different than the case described in Exodus. There the two owners sold both the live ox and the carcass and split the proceeds evenly. In this case there is no need for any selling or splitting of proceeds.

It's a dispute between Rabbi Yehuda and Rabbi Meir [when the carcass is increased in value].

If an ox worth 200 gored an ox worth 200 and the carcass is not worth anything, Rabbi Meir said, “If thus it was written, ‘they shall sell the live ox and divide its price, they shall also divide the dead animal’. Section 2, which contains Rabbi Meir’s opinion brings up a case closer to the one described in Exodus. Here the goring ox and the gored ox are both worth 200, but the carcass is not worth anything. The owner of the goring ox owes 100 and therefore the two owners sell the goring ox and split the proceeds.

And this is because the idea in our hands [is that] the carcass goes to the owner meaning to say to the damagee, and they evaluate it to him based on it's value. And this is what that it says in the pasuk 'and the dead one will be to him and he (the damager) will pay him half damages above if it was innocuous , or full damages if it was accustomed. Since what that it says Hashem (the torah) that they divide the money implying that he is obligated in only half damages. And this is what that they said the diminishment that the death causes- they split, and this is how it appears to one who examines it.

Rabbi Judah said to him: “Such indeed is the halachah (, but you have fulfilled the verse ‘they shall sell the live ox and divide its price’, and you have not fulfilled the verse ‘they shall also divide the dead animal’. What case is this? If an ox worth 200 gored an ox worth 200 and the corpse is worth 50, this one takes half of the live ox and half of the dead ox, and this one takes half of the live ox and half of the dead ox. In section 3 Rabbi Judah points out that Rabbi Meir’s scenario only fulfills half of the description of the case in Exodus, that is selling the live animal. Rabbi Meir’s scenario does not include the need to sell the carcass, which is mentioned in Exodus. Therefore Rabbi Judah explains that Exodus describes the scenario as we explained in the introduction, where both oxen are worth 200 before the goring and the carcass is worth 50. They sell both the live and dead oxen and split the proceeds, leaving both parties with 125, 75 less than the amount with which they started. Since full damages were 150, 75 is equal to half damages.

And what that it's said and they should sell the live ox means to say that the innocuous pays half damage from itself like we said before, and there is not a dispute in these issues. But there is a dispute between Rabbi Meir and Rabbi Yehuda when a carcass is worth near the (time of) death, for example, a dinar and increases it's value and It's worth before they appear in court 2 dinarim, Rabbi Yehuda says (the pasuk says) "and also the dead they should split" and calculate to him a dinar and a half, and pays him half damages, since the dinar it increased, they split it

Questions for Further Thought:
• As I pointed out in the introduction, the Torah is only dealing with a circumstance in which both oxen were of equal value. Why do you think the Torah only describes this circumstance?
• Following up the first question, the Torah teaches the principle of half damages. Why do you think that it doesn’t just say that the injuring party pays half damages and instead it describes the process of selling both the live and dead animals? To whose advantage is this system?

And Rabbi Meir says it's not for him except the dinar that it was worth at the time it died, like it's said, 'and the carcus will be to him', as if to say whatever the carcus increases in it's dead state, goes to the damagee. And just like this, when the carcus is not worth anything at all at the time of death, and afterwards it becomes worth money, R. Meir says, 'it's not calculated that money, rather pay him half damages, and this is what it says that we say 'and they should sell the living ox and divide the money. And R. Yehuda says 'calculate for half of the value of the carcus since it's value is all profit since it was not worth anything at the time of death. And this is what R. Yehuda says to disagree with him, keeps 'sell the live ox' he does not keep 'and also the dead they divide'. And the halakah is like R. Yehuda

Further it will be explained to you since someone who embarrasses you, and even a man is not obligated for embarrasing until there was intentention

שורו שבייש פטור – as it is written (Leviticus 24:19): “If anyone [maims] his fellow, [as he has done so shall it be done to him],” and not “an ox to its fellow.” Alternatively, the one causing an indignity is not liable other than when he causes an indignity/puts to shame with intention, but an ox does not “intend” to cause an indignity/put to shame to anyone.

There is one who is obligated for the act of his ox and exempt from his own act, and one who is exempt from his own act and obligated on the act of his ox.
[If] his ox caused embarrassment [to another person], he is exempt; [If, however] he caused embarrassment [to another person] he is obligated.
[If] his ox put out the eye of his slave or knocked out his [slave’s] tooth, he is exempt [from freeing the slave]; [If, however] he put out the eye of his slave or knocked out his tooth, he is obligated to free the slave.
[If] his ox injured his father or mother he is obligated; [If, however] he injured his father or mother he is exempt.
[If] his ox lit a heap of produce on fire on Shabbat, he is obligated; [If, however] he lit a heap of produce on Shabbat he is exempt, because he is liable for his life.
Our mishnah is concerned with the differences in obligation when a human being and an ox cause the same damage. We will discuss these differences in the explanation.
One interesting note is that our mishnah is composed in highly formulaic language, which makes it easier to memorize. We should always remember that the mishnah is oral Torah, recited and taught orally by the Sages. As such it is important for it to be composed in the type of repetitive and formulaic language that could be memorized. This mishnah is a prime example of this type of composition.
 Section one is an introductory clause explaining the topic of the mishnah. We will be dealing with cases in which the same injury which creates obligation when a human being was the cause, does not create obligation if an ox was the cause and vice versa.
 Section two deals with the case of embarrassment payments. In chapter eight of Bava Kamma we will learn that when a person injures another person one of the payments he makes is for the embarrassment caused to the other person. We learn in our mishnah that since an ox does not know that he might cause embarrassment to another person, if the ox should injure another person, it’s owner is exempt from that payment.
 Section three deals with damages done to a slave. According to Exodus 21:26-27 if a man should put out the eye of his slave or knock out the slave’s tooth he must set the slave free. Our mishnah tells us that this is only so if the owner himself does the act. If the ox were to do the act, the owner is not obligated to free the slave. Nor is he obligated for any financial payment since the slave is his property. As such, anything owned by the slave belongs to the master, and therefore there would be no sense in the owner paying the slave.
 Section four deals with striking one’s parents. According to Exodus 21:15 if a person strikes his/her mother or father s/he is obligated for the death penalty. In our mishnah we learn that if an ox that belonged to a person were to damage the person’s parents, the person is obligated for monetary payment, the same way he would be if the ox injured any person. However, if the person himself struck the parent, he is exempt from monetary payment. At the end of this mishnah we learn a new principle: when a person commits a crime that would potentially carry with it the death penalty and a monetary fine, he receives only the death penalty. In Jewish law one generally can receive only one punishment per crime, namely the greater punishment. If he is liable for death and money, he gets the death penalty only, that being the greater punishment.
 Section five deals with a burning a heap of produce on Shabbat. Lighting a fire on Shabbat is a capital crime (see for instance Exodus 35:2-3), as are all forbidden acts on Shabbat (if the person was warned beforehand, and understood properly the severity of his/her crime). Destroying crops through fire is a crime that will carry with it a monetary penalty. Therefore if an ox should cause the fire, it’s owner is obligated. If however, a person should destroy the crops through fire on Shabbat, he will incur the death penalty. In this case, as in the previous case, when a person is liable for the death penalty he is exempt from monetary payment.

All the more so if an ox embarrasses he is exempt. And it's already known that the principle by us is that a man does not die and pay, and this is explained in the 3rd chapter of kesubos. And what that it says that he blinded the eye of a slave and knocked out his tooth that he is obligated wants to imply that the slave goes out free like is explained in the pasuk. This is the obligation he is obligated in.

שורו שסימא את עין עבדו פטור – the slave does not become a free person by means of this [act].

והוא שסימא את עין עבדו חייב – [as it states] (Exodus 21:26): “[When a man strikes the eye of his slave, male or female, and destroys it,] he shall let him go free on account of his eye.”

שור שחבל באביו ובאמו חייב – with the payment of their damages.

הוא שחבל באביו ובאמו פטור – [exempt] from payment, for a person does not die and pay [damages].

שורו שהדליק את הגדיש בשבת חייב – one-half damages since it is different/strange.

All this is explained and clear and what that it says...

בסלע לקה – it rubbed itself against a rock and was damaged.

If an ox was pursuing another ox and [the latter ox] was injured: this one claims “Your ox caused the injury, and this one claims “No, it was injured by a rock.” on the one who wishes to exact compensation lies the burden of proof.
If two oxen were pursuing a third ox: this one claims “Your ox caused the injury”, and this one claims “Your ox caused the injury”, they are both exempt. However, if they were both owned by one man, they are both obligated.
If one was big and was small: the [owner] of injured [ox] says that “The large one caused the injury”, and the [owner] of the injuring [ox] says, “The small one caused the injury”, [or] if one was a harmless ox ( and one was an attested danger ( the [owner] of the injured ox says, “The [ox which is an] attested danger caused the injury, and the owner of the injuring ox says, “The [ox which is] harmless caused the injury”, on the one who wishes to exact compensation lies the burden of proof.
If two oxen were injured, one big and one small, and two oxen caused the injury, one big and one small: [the owner] of the injured oxen says, “The big ox injured the big ox and small ox injured the small ox,” and the [owner] of the injuring oxen says, “The small ox injured the big ox and the big ox injured the small ox”; [or] if one was harmless and one was an attested danger: the [owner] of the injured oxen says, “The [ox which is an] attested danger injured the big ox, and the harmless [ox] injured the small ox”, the owner of injuring oxen says, “No rather the harmless [ox] injured the large ox and the [ox which is an] attested danger injured the small ox”, on the one who wishes to exact compensation lies the burden of proof.
The final mishnah of the third chapter is concerned with an extremely important principle in Jewish law, that the burden of proof is on the one who wishes to exact compensation. In terms of modern law this means that the plaintiff must bring positive proof that the defendant owes him money in order for the court to find in his favor. In absence of positive proof, the defendant will be found exempt.
We will explain each clause independently. As you read the mishnah notice how the mishnah begins with simple cases and proceeds to the complicated cases. The mishnah is a didactic text: once you learn the principles you can move onto more complicated problems.
This entire lengthy mishnah is based on one principle, that the burden of proof lies on the pursuant.
 Section one deals with the simple case of one ox causing injury to another ox. The owner of the injured ox must bring proof that his ox was injured by the other ox and not by a rock. Since the burden of proof lies on him, without proof he will not be able to collect damages.
 Section two deals with the case of two oxen chasing after one ox. It is clear that one of the two oxen caused the injury but it is unclear which one. Each of the independent owners of the two pursuing oxen claims that the other ox caused the injury. Since the owner of the injured ox cannot prove which ox caused the injury, he can’t collect damages from either. However, if both of the pursuing oxen were owned by the same person, he is liable.
 Section three continues to deal with the situation of two potentially injuring oxen. This time we learn that one of the two was a large, probably expensive ox, and the other was small. They were both harmless oxen, and therefore we are dealing with payment of half damages. It is in the owner of the injured ox’s best interest that the larger ox caused the damage, since when a harmless ox injures the damages paid can be no greater than the worth of the injuring ox. Take for example the case where a large ox was worth 500 and the small ox 100 and the damages were 250. The owner of the damaged ox would like to collect 125, half damages. If the small ox caused the injury the most he could recover is 100, the value of the small ox. However, if the owner of the large ox caused the injury, he can recover the full 125. In our mishnah there is a dispute over which animal caused the injury, and as usual the burden of proof lies on the plaintiff.
 In the second half of section three instead of one of the potentially injuring oxen being large and the other being small, one is a harmless ox, which only pays half damages, and one is an attested danger which pays full damages. Obviously it is in the best interests of the owner of the injured ox that the attested danger caused the damage, thereby allowing him to recover full damages. Again the burden of proof lies on the plaintiff.
 Section four further complicates our scenario. This time two oxen caused injury to two oxen. However, the principles are all similar to the cases in section three. The owner of the injured oxen would like to claim that the large ox injured the large ox or that the attested danger ox injured his large ox, and the owner of the injuring oxen claims the opposite. As expected, the mishnah again declares that the burden of proof lies on the plaintiff.

that one who takes (restitution) from his friend on him is the onus, if he doesn't bring proof, there is nothing to him. And even the matter he admits to him he damages is not to him, when he says an innocuous ox damaged or a small animal damaged because the principle in our hand with that he claimed wheat and he aknowledged to him barley, he is exempt even from the value of barley, but if the damagee seized the portion of what he aknowledged to him barley, he is exempt even from the value of barley, but if the damagee seized the portion what the damager aknowledged to him, he gets to keep it, and we do not take it from his hand. and so too if it came into the domain of the claimant of wheat the portion what was aknowledged to him of barley we don't take it from his hand

היו שנים רודפין אחר א' – two oxen [belonging to] two people are pursuing/running after the ox of another person.

שניהם פטורים – since both pushed it aside.

שניהם חייבים – In the Gemara (Tractate Bava Kamma 36a) it explains our Mishnah as for example that both of them (i.e., the oxen) are innocuous for the [owner of the] innocuous ox does not pay other than from his own funds. But when both are present, the first one pays the [owner of the] damaged ox one-half damages between the two of them. But where both are not present, one can say to him: Go bring proof that this ox caused you damage and I will pay you.

גדול הזיק – that there is in his body the equivalent of half-damages.

קטן הזיק – and you will take the worth of the small ox, and the excess one-half of your damages, you will lose.

קאן הזיק את הגדול – and even though that half of the damages of he larger ox is greater, you will not take other than my small one. And half of his damages of the small one is yours. Take from the large one, and all of this is “he who seeks reparation from his fellow must produce evidence,” as we have taught in our Mishnah. But if he did not bring proof, he has nothing and even the value of he innocuous [ox, and even if the [owner of the] small ox who admitted to him, he lacks, for the person who makes a claim on his fellow for wheat and admits to him regarding barley is exempt even from the monetary value of the barley. But if the [owner of the ox] who suffered damage grabbed a measure of what the [owner of the] ox who caused the damages admitted to him, we don’t take it from him.