Translation:Shulchan Aruch/Choshen Mishpat/400

Paragraph 1- If an ox was pursuing another ox, and one was damaged, and the victim tells the other his ox damaged him, and the owner of that ox says that his ox did not damage but the victim’s ox tripped on a rock, the party trying to take money has the burden of proof, even if the victim makes a certain claim, and the tortfeasor makes an uncertain claim. If the victim claims the tortfeasor knows his ox damaged, he would take a heses oath that he does not know. When is this true? In the case of a warned-ox. In the case of an unwarned-ox, however, he would even be exempt from a heses oath because had he confessed he would be exempt since it is just a penalty.

Paragraph 2- If two oxen were pursuing one, and there are witnesses that one ox damaged but they don’t know which one of the two, and each owner says the other one’s damaged, they would both be exempt. If they belonged to one person, he would be liable to pay from the body of the one worth less. If they were warned, he would pay full damage from his own properties. When is this true? Where both oxen were in existence. If one had died or was misplaced and one was unwarned, however, even if they belonged to one person, he would be exempt, because he can tell the victim that the one in existence is the one that damaged and then he will be pay.

Paragraph 3- If of the two oxen that were pursuing, one was large and one was small, and the victim says the large one damaged, while the tortfeasor says it was the small one, or one was unwarned and one was warned, and the victim says the warned one damaged while the tortfeasor says the warned one damaged, the party trying to take money has the burden of proof. If there was no clear proof that a specific one damaged, but witnesses testify that one of these two damaged, the tortfeasor would pay what the witnesses testify to. If the victim claims the other knows with certainty that this one damaged in front of him, the tortfeasor would pay what he confessed to and take a biblical oath on the rest. There are those who say that no oath at all is required because it is like one made a claim on wheat and confessed on barley, where the tortfeasor is even exempt on what he confessed to. Even if the victim seized, we would remove from him. This is only where the victim makes a certain claim. If he makes an uncertain claim, however, the tortfeasor would pay as he claims.

Paragraph 4- If there were two victims, and one was large and one was small, and there were two oxen that were pursuing, and one was large and one was small, the and the victim says the large damaged the large and the small damaged the small, while the tortfeasor says the small damaged the large and the large damaged the small, or one was non-warned and one was warned, and the victim says the warned one damaged the large one and the warned one damaged the small one, and the tortfeasor says the unwarned animal damaged the large one and the warned one damaged the small one, the party trying to take money has the burden of proof. If he does not bring proof, the tortfeasor would be exempt because it is as if he makes a claim on wheat and the other confessed on barley, where he would swear a heses oath and would even be exempt for paying for the value of barley. This is the alternative opinion that I wrote above. There are those who differentiate in a case where there are witnesses that say one damaged but they don’t know which one, and the tortfeasor would pay that which he claimed, and it is not considered where one claimed wheat and the other confessed to barley, like the first view of the Mechaber that it is considered a confession, as was discussed. If the victim seized, the owner would pay for the small one from the large for the large one from the small, as the tortfeasor confessed to. Even if he seized with witnesses, he would collect what the tortfeasor admits to, but not what the victim himself claims. This is only where he seized before coming to court. If it was after he came to court, however, seizure would not help, even to collect what the tortfeasor admits to.