The Mishnah (3:11) deals with cases of damage, where the cause was disputed. The common ruling is based on the principle of "ha'mitzi mechaveiro alav ha'raaya" – the burden of proof rests on the one attempting to extract the funds. One case is where one of two oxen own by one person, pursued, gored and killed another. Recall that in the case of an ox that is defined as tam – does not have a history of goring – that the owner must pay half the value of the damage caused, and the compensation is taken from the value of the ox that caused the damage. In this case the owner of the ox that was killed claims it was the more expensive of the two that caused the damage, to maximise his compensation. The owner of the two oxen however claims it was cheaper of the two. As explained, the owner of the ox that was killed must prove it was the more expensive of the two otherwise he can only be paid to the value of the cheap of the two oxen.
The Rambam (Hilchot Nezikin 9:1) rules that in a case like our Mishnah's, if there were witnesses that saw the attack but are unsure which ox caused the damage, the mazik (owner of the ox that caused the damage) would be required to make a shevua (oath). This is because the owner is admitting to part of the claim that was made against him, The Raavad comments that that would only be true if one ox was a mu'ad (the owner had been warned after each of the three previous goring incidents) and the other a tam. This is because if the mu'ad caused the damage, then there is a lien on all the mazik's property to pay for the damage. By admitting that it was the tam, it is considered a partial admission. If however, as we explained above, both oxen were each a tam, then the Raavad maintains that the claim that the small ox caused the damage is not considered a partial admission. The Maggid Mishneh however disagrees. He argues that since there were witnesses, there exists an obligation to pay. We need to understand the positions of the Raavad and Magid Mishneh.
The Shach (ChM 400:6) finds the Maggid Mishneh difficult. The payment required in the case of a tam is defined as a kenas (fine) and not mamon (compensation). Considering that when one admits to a fine (in the absence of witnesses) that they are exempt from paying it, a shevuah in the case where each ox was a tam should not be required since once the owner admits he is exempt from payment.
The Ketzot (400:1) cites the Tumim (88:11) that defends the Magid Mishneh. He answers that since there were witnesses to the damage, this case would not considered as admitting to a kenas but rather admission to a payment. The Tumim compares this case to a bankrupt individual that stole, was caught and was required to pay double (as a kenas). If the thief, then revealed that he has hidden assets, that would certainly not be considered as admitting to a fine. In this case also, the Torah obligated the owner with paying for half of the damage caused. In other words, there is no question regarding the obligation and value of the kenas. The Torah however said that the payment must come from the ox that caused the damage. If its value is less than the damage caused, then the owner of the ox that was killed loses that difference. Consequently, the "admission" in this case should only be considered as directing us to the source of the funds.
The Ketzot however disagrees. In the case of the thief, even if the thief was indeed bankrupt, if the funds eventually become available the obligation still exists. In the case of a tam, the funds can only be extracted from the ox that caused the damage and no other property. Without identifying the ox, there is no obligation. Consequently, in support of the Shach, once the owner identifies the ox that caused the damage, it would be considered as if he incriminated himself, admitting to the knas and thereby exempt.
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