Commentary for Bava Kamma 70:24

תנן היה אחד תם ואחד מועד הניזק אומר מועד הזיק את הגדול ותם את הקטן והמזיק אומר לא כי אלא תם את הגדול ומועד את הקטן המוציא מחבירו עליו הראיה הא לא מייתי ראיה שקיל כדקאמר מזיק ואמאי חטין ושעורין נינהו

whereas [a case where the claimant is] certain and [the defendant also] certain is not co-ordinate with [a case where the claimant is] doubtful and [the defendant] certain.<span class="x" onmousemove="('comment',' R. Papa was therefore loth to explain the commencing clause as dealing with a case where the defence as well as the claim was put forward on a certainty, but preferred to explain it as presenting a law-suit where, though the claim had been put forward positively, the defence was urged tentatively. ');">²⁰</span> The above text states: 'Rabbah b. Nathan said: Where the plaintiff claimed wheat and the defendant admitted barley, he is not liable [for either of them].'<span class="x" onmousemove="('comment',' V. p. 197. n. 2. ');">²¹</span> What does this tell us? Have we not already learnt [in a Mishnah]: where the plaintiff claimed wheat and the defendant admitted barley he is not liable?<span class="x" onmousemove="('comment',' Shebu. 38b. ');">²²</span> If we had only [the Mishnah] there<span class="x" onmousemove="('comment',' Shebu. 38b. ');">²²</span> to go by, I might have argued that the exemption was only from the value of the wheat,<span class="x" onmousemove="('comment',' Which was denied by the defendant. ');">²³</span> while there would still be liability for the value of barley;<span class="x" onmousemove="('comment',' Admitted by the defendant. ');">²⁴</span> we are therefore told by Rabbah b. Nathan that the exemption is complete. We have learnt: WHERE THERE WERE TWO INJURED OXEN, ONE BIG AND THE OTHER LITTLE etc. [Now this implies that] where he does not produce evidence he will get paid in accordance with the pleading of the defendant. But why not apply here [the principle of complete exemption laid down in the case of] wheat and barley? — The plaintiff<span class="x" onmousemove="('comment',' In the case of the oxen. ');">²⁵</span> is entitled to get paid [only where he produces evidence to substantiate the claim], but will have nothing at all [where he fails to do so]. But has it not been taught; He will be paid for [the injury done to] the little one out of the body of the big and for [the injury done to] the big one out of the body of the little one? — Only where he had already seized them.<span class="x" onmousemove="('comment',' In which case the principle of complete exemption maintained by Rabbah b. Nathan apparently does not apply. ');">²⁶</span> We have learnt: IF ONE WAS <i>TAM</i> AND THE OTHER <i>MU'AD</i>, AND THE PLAINTIFF CLAIMS THAT THE <i>MU'AD</i> INJURED THE BIG ONE<span class="x" onmousemove="('comment',' V. p. 196. n. 1. ');">²⁷</span> AND THE <i>TAM</i> THE LITTLE ONE WHILE THE DEFENDANT PLEADS, 'NOT SO, FOR [IT WAS THE] <i>TAM</i> [THAT INJURED] THE BIG ONE AND THE <i>MU'AD</i> [THAT INJURED] THE LITTLE ONE', THE BURDEN OF PROOF FALLS ON THE CLAIMANT. [Now this implies that] where he does not produce evidence he will get paid in accordance with the pleading of the plaintiff. But why should [the principle of complete exemption laid down in the case of] wheat and barley not be applied here? —

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