The boys from Chilutz Atzamos High School were returning to their school from a basketball game off campus. They had won the game and were in high spirits – and a little rambunctious.
“I’ll race you to the storage room where they keep the balls,” Reuven said to Shimon.
“Deal!” exclaimed Shimon. The two raced ahead, with balls in hand.
As they neared the room, situated around a bend, Shimon said: “Let’s see who can bounce his ball off the opposite wall into the room!”
The two boys hurled their balls at the wall forcefully, with precision, and both balls rebounded through the open door. Two seconds later, as they reached the room, they heard a shatter. One of the balls had hit the window and broken the glass pane.
A minute later, the coach arrived. “What happened?” he asked.
“We threw our balls into the room, and one of them broke the window,” Shimon apologized.
“That was reckless of you!” the coach reprimanded them. “You’re going to have to pay the school for the repair.”
“It was not my idea, so it’s not really my fault,” Reuven said. “Why should I have to pay?”
“Even if it was my idea, if Reuven’s ball broke the window, he’s liable – not me!” Shimon argued. “Who’s to say that I have to pay?”
“I guess, then, each of you should pay half,” said the coach. “That’s fair.”
“I don’t think it’s fair,” insisted Reuven. “If my ball didn’t break the window, why should I have to pay anything?”
“Then what do you suggest?” asked the coach.
“Ask Rabbi Dayan!” the two boys responded in unison.
Reuven, Shimon, and the coach approached Rabbi Dayan and asked, “Who is liable for the broken window?”
“The Mishna (B.K. 35a-b) addresses the case of two oxen, one of which gored and damaged,” replied Rabbi Dayan. “If the oxen belong to different owners, the plaintiff, who suffered the loss, cannot sue either owner, because each owner can claim that perhaps the ox that gored was not his. However, if both oxen belong to the same owner, the plaintiff can sue him, because either way the owner is liable (C.M. 400:2).
“Even if the plaintiff was present at the time of damage and claims that it was A’s ox that damaged, whereas the owners were not present and do not know, the burden of proof is on the plaintiff to bring evidence for his claim that A’s ox damaged (Shach 400:1).
Moreover, Tosafos (B.K. 46a) writes that even according to the opinion (which we do not rule like) that bari v’shema bari adif – if the lender claims definitively that he lent and the borrower does not know, the lender’s definitive claim is superior and the borrower is liable – here the plaintiff must bring proof. This is because a person is expected to know whether he borrowed so that the lender’s definitive claim vs. the borrower’s doubtful stance is superior. However, in the case of the two oxen, where the owners were not present and they are not expected to know, A’s doubtful claim is not considered inferior. (All the more so according to the halachic ruling that the borrower is exempt even with a doubtful claim, although there he has a moral obligation (C.M. 75:9).)
Thus, because we don’t know whether Reuven’s ball or Shimon’s ball broke the window, neither can be held liable, nor can we demand that each pay half.
Nonetheless, since their joint recklessness, goading each other on, led to negligent damage, they possibly share some joint liability, at least as grama, and might have moral responsibility to compensate for the loss.
In the opposite case, as well, where someone damaged, but it is not clear whom he damaged (e.g., one party was damaged by him, and one by natural causes), neither plaintiff can sue, since the defendant can evade each plaintiff and claim that he does not owe him, but rather the other plaintiff.
“In that case, though,” concluded Rabbi Dayan, “one plaintiff can grant authorization (harsha’ah) to the other so that the second plaintiff can place a claim – either in his name, or in the name of the first plaintiff, as his attorney.”
Verdict: When it is not known which of two people damaged, the burden of proof is on the plaintiff to bring evidence who damaged; otherwise, neither can be held liable.
