היו שנים רודפים אחר אחד זה אומר שורך הזיק וזה אומר שורך הזיק
Is it not stated there [that were the owner to have set fire to a barn on Sabbath there would be no civil liability] AS HE WOULD BE SUBJECT TO A CAPITAL CHARGE?<span class="x" onmousemove="('comment',' V. p. 192, n. 8.
');"><sup>14</sup></span> — It only means to say this: Since if he would have committed it maliciously he would have been liable to a capital charge, as, e.g., where he had need of the ashes, there should be exemption [from civil liability] even in such a case as this where he did it inadvertently.<span class="x" onmousemove="('comment',' On the basis of the teaching of Hezekiah.
');"><sup>15</sup></span> <b><i>MISHNAH</i></b>. IF AN OX WAS PURSUING AN OTHER'S OX WHICH WAS [AFTERWARDS FOUND TO BE] INJURED, AND THE ONE [PLAINTIFF] SAYS, 'IT WAS YOUR OX THAT DID THE DAMAGE, WHILE THE OTHER PLEADS, 'NOT SO, BUT IT WAS INJURED BY A ROCK [AGAINST WHICH IT HAD BEEN RUBBING ITSELF]',<span class="x" onmousemove="('comment',' Denying thus any liability. ');"><sup>16</sup></span> THE BURDEN OF PROOF LIES ON THE CLAIMANT. [SO ALSO] WHERE TWO [OXEN] PURSUED ONE AND THE ONE DEFENDANT ASSERTS, 'IT WAS YOUR OX THAT DID THE DAMAGE', WHILE THE OTHER DEFENDANT ASSERTS, 'IT WAS YOUR OX THAT DID THE DAMAGE',
Shenei Luchot HaBerit
The requirement in (18,21) of יראי אלוקים, refers to the third of the qualities a judge must possess, namely that he must not be dogmatic in his approach. We have a tradition that under normal circumstances, i.e. חזקה, a debtor does not repay a loan before a due date [especially since he has nothing to gain, not paying interest on the loan. Ed.]. A case may come before the judge when the debtor claims to have prepaid, the judge believes him, but the debtor is unable to prove his claim. Another situation that may involve the יראי אלוקים requirement may be one when the accepted practice of המוציא מחברו עליו הראיה, that he who wants to be paid from his fellow man must produce proof, cannot be applied, since the nature of the case makes it unlikely that the claimant has proof. In either case, if the judge is convinced of the honesty of the litigant, the Torah tells him to act like אלוקים, i.e. G–d who is omniscient. He may have to explain why he hands down a verdict without the necessary legal requirements having been met. This is one aspect of what is called הוראת שעה, emergency situation. This is what king Yehoshaphat had in mind in Chronicles II 19,6, when he assured the judges that G–d was with them, i.e. would assist them in arriving at a true verdict. Under such circumstances it is, of course, even more important for the judge to explain the reason he handed down a certain verdict.
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